State of
Andhra Pradesh & Anr Vs. Balajangam Subbarajamma
[1988] INSC 328 (27
October 1988)
Shetty,
K.J. (J) Shetty, K.J. (J) Oza, G.L. (J)
CITATION:
1989 AIR 389 1988 SCR Supl. (3) 620 1989 SCC (1) 193 JT 1988 (4) 441 1988 SCALE
(2)1096
ACT:
Constitution
of India, 1950: Articles 22, 226, 136 and Schedule VII Entry 9 of List 1, Entry
3 of List III-- Preventive detention--Power of legislation--Safeguards provided
in the Constitution--Advisory Board--Right to representation by legal
practitioner--Whether permissible.
%
Prevention of Black marketing and Maintenance of Supplies of Essential
Commodities Act, 1980: Section II--Advisory Board--Right to representation by a
lawyer at proceedings-- Whether permissible High ranking police officers
appearing on behalf of Government and detaining authority before Advisory
Board--Detenu not permitted to have representation through a legal
practitioner--Quashing of the detention order by the High Court--Justified.
HEAD NOTE:
An
order was passed by the District Magistrate, Nellore, directing the detention of the respondent under the
Prevention of Black Marketing and Maintenance of supplies of Essential
Commodities Act, 1980. The State Government approved the detention and referred
the matter to the Advisory Board under section 10 of the Act. The detenus.
representation
was also forwarded by the Government to the Advisory Board. The Advisory Board
heard the detenu and the top ranking police officers, who represented the
State, and expressed the opinion that there was sufficient cause for the
detention of the respondent. The Government agreed with the opinion and
confirmed the respondent's detention for a period of six months.
The detenu
challenged the validity of the order of detention. The High Court allowed the
writ petition. The High Court found that there was unequal treatment by the
Advisory Board in considering the representation of the detenu.
Dismissing
the appeal, it was,
HELD:
(1) The Act by s. 11(4) expressly denies representation through a legal
practitioner. The Board may hear any person it necessary. If the detenu desires
to be PG NO 620 PG NO 621 heard, the Board may hear him also. But no person has
a right to be represented by a lawyer, much less the detenu.
This
provision is in conformity with Art. 22(3)(b) of the Constitution. [626B-C] (2)
The power to detain a person without trial is a serious In-road into the
liberty of individuals. It is a drastic power capable of being misused or
arbitrarily exercised. The framers of our Constitution were not unaware of it.
They had, therefore, specially incorporated in the Constitution enough
safeguards against the abuse of such power. [630G-H] (3) The Advisory Board is
a constitutional imperative.
It has
an important function to perform. There is no particular procedure prescribed
for the Advisory Board since there is no lis to be adjudicated. Section 11 of
the Act provides only the broad guidelines for observance. The Advisory Board,
however, may adopt any procedure depending upon varying circumstances. But any
procedure that it adopts must satisfy the procedural fairness. [631F-G] (4) It
is important for laws and authorities not only to be just but also appear to be
just. Therefore, the action that gives the appearance of unequal treatment or
unreasonableness-whether or not any substance in it--should be avoided by the
Advisory Board. It is the duty of the Advisory Board to see that the case of detenu
is not adversely affected by the procedure it adopts. It must be ensured that
the detenu is not handicapped by the unequal representation or refusal of
access to a friend to represent his case [632B-C] (5) In the instant case,
since the Advisory Board has heard the high ranking officers of the Police
Department and others on behalf of the Government and detaining authority it
ought to have permitted the detenu to have the assistance of a friend who could
have made an equally effective representation on his behalf. Since that has
been denied to the detenu, the High Court was justified in quashing the
detention order. 1632D-E] A.K. Roy v. Union of India, [1982] 2 SCR 272; Kavita
w/o Sunder Shankardas Devidasani etc. v. State of Maharashtra, [1982] 1 SCR
138; Nand Lal v. State of Punjab, [1982] I SCR 718; Johney DaCouto v. State of
Tamil Nadu, AIR 1988 SC 109, referred to.
CRIMINAL
APPELLATE JURISDICTION: Petition for Special Leave to Appeal (Crl) No
1783/1988.
PG NO
622 From the judgment and Order dated 14.4.1988 of the Andhra Pradesh in W.P.
No. 4454 of 1988.
G. Ramaswamy,
Additional Solicitor General and T.V.S.N. Chari for the Petitioners.
A. Subba
Rao for the Respondent.
The
Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. This appeal by
special leave is directed against the judgment dated April 14, 1988 of the High
Court of Andhra Pradesh in writ petition No. 4454 of 1988 whereby the order of
detention passed against the respondent under the Prevention of Black Marketing
and Maintenance of Supplies of Essential Commodities Act, 1980 ("The
Act") was quashed.
Briefly
stated the facts are these: The respondent was said to have smuggled paddy from
Andhra Pradesh to Tamil Nadu. During the watch kept by the Inspector, Vigilance
Cell, Civil Supplies Department, Nellore on the night of November 4, 1987 a
lorry bearing No. MDN-8505 carrying 125 bags of paddy was spotted when it was
trying to go to Tamil Nadu avoiding check post. The lorry was chased by the
Inspector of Police and his staff. The driver suddenly stopped the lorry, but
the persons in the vehicle took the heals jumping out there-from and disappeared
in the bushes.
The
respondent was identified by the Inspector of Police and his staff in the head
lights of the jeep in which they were chasing. The driver of the vehicle was
apprehended after a hot chase, but not the respondent. From the interrogation of
the driver, it was established that on November 4, 1987, the respondent along
with two others were in the cabin of the lorry and they were responsible for
transporting paddy to Tamil Nadu. The paddy and the lorry were seized by the
Inspector. A criminal case was registered against the driver under the
Essential Commodities Act and the Andhra Pradesh Rice Procurement (Levy) Order,
1984. When the investigation of that case was proceeding, Additional
Superintendent of Police, Nellore sent
proposals to the District Magistrate for detaining the respondent under the
Act. The District Magistrate passed an order dated December 24, 1987 directing the detention of the respondent. On January 4, 1988, the State Government approved the
detention. On January
11, 1988 the State
Government acting under sec. 10 of the Act refered the matter to the Advisory
Board.
PG NO
623 On January 27, 1988, the detenu submitted a
representation through the Superintendent, Central Prison where he was detained
to the Chairman of the Advisory Board and to the Chief Secretary, Government of
Andhra Pradesh and also to the detaining authority. The Government forwarded
the representation to the Advisory Board. On January 29, 1988, the Advisory Board met and heard the detenu and the
officers on behalf of the Government. There were high ranking police officials
representing the Government. The Advisory Board after hearing those officers
and the detenu made an order:
"We
have heard the detenu, who has been produced before us and considered his written
representation. We have also heard Sri V. Appa Rao, I.G.P. (Spl), Vigilance,
Sri C.R. Naidu, Addl. S.P. (Vigilance), Hyderabad, Sri N. Chandramouli, D.S.P. (Vigilance), Nellore and Sri Nageswara Rao, Incharge
Joint Collector, Nellore District. We have perused the grounds of detention and
other connected papers.
OPINlON
We are
of the opinion that there is sufficient cause for the detention of Balajangam Subaramaiah
Subaramaiah Subbarami Reddy S/O Changaiah.
Chairman
Member Member" The Government agreed with the opinion and confirmed the
detention for a period of six months. The detenu challenged the validity of the
order of detention before the High Court. The High Court allowed the writ
petition and quashed the order of detention. The High Court found that there
was unequal treatment by the Advisory Board in considering the representation
of the detenu. The Advisory Board having decided to hear the top ranking police
officers like the Inspector General of Police, Vigilance, Additional
Superintendent of Police, Vigilance, Deputy Superintendent of Police, Vigilance
and Joint Collector of Nellore District ought to have given an equal chance of
representation to the detenu by permitting him to be represented by a lawyer or
at least by an official (friend) of an equal rank. The High Court tersely
observed:
PG NO
624 "In such circumstances, the Advisory Board ought to have provided the
prisoner an opportunity for representation though not by a lawyer at least by
some one equally competent like those who appeared for the State. The
Government cannot deny the fact that the might of the official representation
before the Advisory Board out- weighed by several times the value of the detenu's
representation .
The
High Court also found that the detenu did write to the Government on January 27, 1988 asking for representation by a
lawyer and that request ought to have been acceded to by the Advisory Board
when the matter came up before it. The High Court then said:
"We
are of the opinion that the dormant right of the detenu for equal
representation had become active upon the mode of conducting the proceedings by
the Advisory Board.
The
prisoner in this case could not have envisaged that the High State
officials would appear against his case and for the detaining authority. For
these reasons. we cannot agree with the contention that the prisoner himself
was to blame for not asking the Advisory Board for a lawyer's representation or
for equal level of representation before the Advisory Board. As we are of the
opinion that Article 22 (5) requires the Advisory Board to afford the prisoner
an equal opportunity for representing his case compared with the quality and
quantity of official representation allowed for the detaining authority and as
we are also of the opinion that the official representation in this case far
outweighed in importance the detenu's representation we hold that Art. 22(5) is
violated in this case.
These
are the findings of the High Court. The question is whether the view taken by
the High Court in the premises is justified. In view of the fact that top
ranking officials representing the Government were personally heard by the
Advisory Board whether the detenu was prejudiced? Whether there was any breach
of equality in denying him representation by a lawyer or friend? The Act by
sec. 10 provides for constitution of an Advisory Board. Sub-sec. 2 thereof
provides that every such Board shall consist of three persons who are, or have
been, or are qualified to be appointed as, Judges of a High Court, and such
persons shall be appointed by the appropriate PG NO 625 Government. Sub-sec. 3
provides that the Government shall appoint one of the members of the Advisory
Board who is, or has been, a Judge of a High Court to be its Chairman, etc.
Section
I0 provides for reference to Advisory Board. In every case where a detention
order has been made under the Act, the Government shall, within three weeks
from the date of detention of a person, place before the Advisory Board
constituted by it, the grounds on which the order has been made the
representation, if any, made by the person affected by the order. Section 1I
provides procedure to be followed by Advisory Board. It reads:
"(1)
The Advisory Board shall, after considering the materials placed before it and,
after calling for such further information as it may deem necessary from the
appropriate Government or from any person called for the purpose through the
appropriate Government or from the person concerned, and if, in any particular
case, it considers it essential so to do or if the person concerned desires to
be heard, after hearing him in person, submit its report to the appropriate
Government within seven weeks from the date of detention of the person
concerned.
(2)
The report of the Advisory Board shall specify in a separate thereof the
opinion of the Advisory Board as to whether or not there is sufficient cause
for the detention of the person concerned.
(3)
When there is a difference of opinion among the members forming the Advisory
Board, the opinion of the majority of such members shall be deemed to be the
opinion of the Board.
(4)
Nothing in this section shall entitle any person against whom a detention order
has been made to appear by any legal practitioner in any matter connected with
the reference to the Advisory Board, and the proceedings of the Advisory Board,
and its report, excepting that part of the report in which the opinion of the
Advisory Board is specified, shall be confidential. ' Section 12 provides that
where the Advisory Board has reported that there is in its opinion sufficient
cause for the detention of a person, the Government may confirm the detention
order and continue the detention of the person PG NO 626 concerned for such
period as it thinks fit. But in case where the Advisory Board has reported that
there is in its opinion no sufficient cause for the detention of the person
concerned, the Government shall revoke the detention order and cause the person
to be released forthwith.
The
Act thus by sec. 11(4) expressly denies representation through a legal
practitioner. The Board may hear any person if necessary. If the detenu desires
to be heard, the Board may hear him also. But no person has a right to be
represented by a lawyer much less the detenu.
This
provision is in conformity with Art. 22(3)(b) of the Constitution, the scope of
which has been explained by a Constitution Bench of this Court. In A. K. Roy v.
Union of India, [ 1982] 2 SCR 272, this Court speaking through Chandrachud,
CJ., had this to say (at 339):
"On
a combined reading of clauses (1) and (3)(b) of Article 22, it is clear that
the right to consult and to be defended by a legal practitioner of one's
choice, which is conferred by clause (1), is denied by clause 3(b) to a person
who is detained under any law providing for preventive detention. Thus,
according to the express intendment of the Constitution itself, no person who
is detained under any law, which provides for preventive detention, can claim
the right to consult a legal practitioner of his choice or to be defended by
him. In view of this, it seems to us difficult to hold, by the application of
abstract, general principle or on a priori considerations that the detenu has
the right of being represented by a legal practitioner in the proceedings
before the Advisory Board. Since the Constitution, as originally enacted,
itself contemplates that such a right should not be made available to a detenu,
it cannot be said less to be satisfied. It is therefore, necessary that the
procedure prescribed by law for the proceedings before the Advisory Boards must
be fair, just and reasonable." Learned Chief Justice continued:
PG NO
627 "But then, the Constitution itself has provided a yardstick for the
application of that standard, through the medium of the provisions contained in
Article 22(3)(b).
However,
much we would have liked to hold otherwise, we experience serious difficulty in
taking the view that the procedure of the Advisory Boards in which the detenu
is denied the right of legal representation is unfair, unjust and unreasonable.
If Article 22 were silent on the question of the right of legal representation,
it would have been possible, indeed right and proper, to hold that the detenu
cannot be denied the right of legal representation in the proceedings before
the Advisory Boards. It is unfortunate that courts have been deprived of that
choice by the express language of Article 22(3)(b) read with Article
22(1)." And also said:
"We
must, therefore, hold, regretfully though, that the detenu has no right to
appear through a legal practitioner in the proceedings before the Advisory
Board. It is, however, necessary to add an important caveat. The reason behind
the provisions contained in Article 22(4)(b) of the Constitution clearly is
that a legal practitioner should not be permitted to appear before the Advisory
Board for any party. The Constitution does not contemplate that the detaining
authority or the Government should have the facility of appearing before the
Advisory Board with the aid of a legal practitioner but that the said facility
should be denied to the detenu. In any case, that is not what the Constitution
says and it would be wholly inappropriate to read any such meaning into the
provisions of Article 22.
Permitting
the detaining authority or the Government to appear before the Advisory Board
with the aid of a legal practitioner or a legal adviser would be a breach of
Article 14, if a similar facility is denied to the detenu. We must, therefore,
make it clear that if the detaining authority or the Government takes the aid
of a legal practitioner or a legal adviser before the Advisory Board, the detenu
must be allowed the facility of appearing before the Board through a legal
practitioner. We are informed that officers of the Government in the concerned
departments often appear before the Board and assist it with a view of
justifying the detention orders. If that be so, we must clarify that the PG NO
628 Boards should not permit the authorities to do indirectly what they cannot
do directly; and no one should be enabled to take shelter behind the excuse
that such officers are not "legal practitioners" or legal advisers.
Regard must be had to the substance and not the form since, especially, in
matters like the proceedings of Advisory Boards, whosoever assist or advises on
facts or law must be deemed to be in the position of a legal adviser. We do
hope that Advisory Boards will take care to ensure that the provisions of
Article 14 are not violated in any manner in the proceedings before them."
Learned Chief Justice also examined the right of a detenu to be represented by
a friend if not by a lawyer and in that context observed:
"Another
aspect of this matter which needs to be mentioned is that the embargo on the
appearance of legal practitioners should not be extended so as to prevent the detenu
from being aided or assisted by a friend who. in truth and substance, is not a
legal practitioner. Every person whose interests are adversely affected as a
result of the proceedings which have a serious import, is entitled to be heard
in those proceedings and be assisted by a friend. A detenu, taken straight from
his cell to the Board s room, may lack the ease and composure to present his
point of view. He may be "tongue-tied, nervous, confused or wanting in
intelligence", and if justice to he done. he must at least have the help
of a friend who can assist him to give coherence to his stray and wandering
ideas. Incarceration makes a man and his thoughts disnevelled. Just as a person
who is dumb is entitled, as he must, to he represented by a person who has
speech, even so, a person who finds himself unable to present his own case is
entitled to take the aid and advice of a person who is better situated to
appreciate the facts of the case and the language of the law. It may be that
denial of legal representation is not denial o1 natural justice per se, and
therefore, if a statute excludes that facility expressly, it would not be open
to the tribunal to allow it. Fairness, as said by Lord Denning M.R., in Maynard
v. Osmond, [1977] I Q.B. 240, 253 can he obtained without legal representation.
But, it is not fair, and the statute does not exclude that right, that the detenu
should not even be allowed to take the aid of a friend. Whenever demanded, the
Advisory Boards must grant that facility." PG NO 629 There are two
decisions of this Court earlier to A.K. Roy, (supra). In Kavita w/o Sunder Shankardas
Devidasani etc. v. State of Maharashtra, 11982] I SCR 138, Chinnappa Reddy, J.
speaking for a three Judge Bench, observed (at 147):
"Where
a detenu makes a request for legal assistance, his request would have to be
considered on its own merit in each individual case. In the present case, the
Government merely informed the detenu that he had no statutory right to be
represented by a lawyer before the Advisory Board. Since it was for the
Advisory Board and not for the Government to afford legal assistance to the detenu
the latter, when he was produced before the Advisory Board, could have; if he
was so minded, made a request to the Advisory Board for permission to be
represented by a lawyer. He preferred not to do so. In the special
circumstances of the present case, we are not prepared to hold that the detenu
was wrongfully denied the assistance of counsel so as to lead to the conclusion
that procedural fairness, a part of the Fundamental Right guaranteed by Article
21 of the Constitution was denied to him .
In
that case, this Court found that there was no denial of procedural fairness
which is a part of the Fundamental Rights guaranteed under Article 21 of the
Constitution. It was also found that the detenu made no request for
representation by a legal practitioner before the Advisory Board.
In Nand
Lal v. State of Punjab, [1982] SCR 718, A.P. Sen, J. said (at 723):
It is
the arbitrariness of the procedure adopted by the Advisory Board that vitiates
the impugned order of detention. There is no denying the fact that while the
Advisory Board disallowed the detenu's request for legal assistance, it allowed
the detaining authority, to be represented by counsel. It appears that the
Advisory Board blindly applied the provisions of sub-s (4) of s. 11 of the Act
to the case of the detenu failing to appreciate that it could not allow legal
assistance to the detaining authority PG NO 630 and deny the same to the detenu.
The Advisory Board is expected to act in a manner which is just and fair to
both the parties." More recently in Johney D'Couto v. State of Tamil Nadu,
AIR 1988 SC 109, Ranganath Misra, J. speaking for a Bench of this Court, said
(at 112):
"The
rule in A.K Roy's case (supra) made it clear that the detenu was entitled to
the assistance of a 'friend'. The word friend' used there was obviously not
intended to carry the meaning of the term in common parlance. One of the
meanings of the word 'friend', according to the Collins English Dictionary is
"an ally in a fight or cause;
supporter".
The term 'friend' used in the judgments of this Court was more in this sense
than meaning 'a person known well to another and regarded with liking, affection
and loyality?. A person not being a friend in the normal sense could be picked
up for rendering assistance within the frame of the law as settled by this
Court. The Advisory Board has, of course, to be careful in permitting
assistance of a friend in order to ensure due observance of the policy of law
that a detenu is not entitled to representation through a lawyer. As has been
indicated by this Court, what cannot be permitted directly should not be
allowed to be done in an indirect way. Sundararajan, in this view of the
matter. was perhaps a friend prepared to assist the detenu before the Advisory
Board and the refusal of such assistance to the appellant was not justified. "
The history of civilised man is the history of incessant conflict between
liberty and authority. The concentration of power in one hand and liberty in
the other cannot go side by side. Temptation to use the power to curtail or
destroy the liberty will be always there. It is found in the history of every
country. The power to detain a person without trial is a serious inroad into
the liberty of individuals. It is a drastic power capable of being misused or
arbitrarily exercised. The Framers of our Constitution were not unaware of it.
Some of them perhaps were the worst sufferers being the victims in the exercise
of that arbitrary power. They had, therefore, specifically incorporated in the
Constitution enough safeguards against the abuse of such power. The power to
legislate in regard to preventive detention is located in Entry 9 of List I as
well as in Entry 3 of List III in the VII Schedule of the PG NO 631
Constitution. The safeguards in regard to preventive detention are incoporated
under Article 22 of the Constitution. Article 22(4) provides:
"No
law providing for preventive detention shall authorise the detention of a
person for a longer period than three months unless-- (a) an Advisory Board
consisting of persons who are, or have been, or are qualified to be appointed
as, Judges of a High Court has reported before the expiration of the said
period of three months that there is in its opinion sufficient cause for such
detention:
Provided
that nothing in this sub-clause shall authorise the detention of any person
beyond the maximum period prescribed by any law made by Parliament under sub-clause
(b) of clause (7): or xxx xxx xxx xx xx xx xx xx xx Article 22(5) provides:
"When
any person is detained in pursuance of an order made under any law providing
for preventive detention, the authority making the order shall, as soon as may
be, communicate to such person the grounds on which the order has been made and
shall afford him the earliest opportunity of making a representation against
the order." These are the two important constitutional safeguards.
The
Advisory Board is a constitutional imperative. It has an important function to
perform. It has to form an opinion whether there is sufficient cause for the
detention of the person concerned. There is no particular procedure prescribed
for the Advisory Board since there is no lis to be adjudicated. Section 11 of
the Act provides only the broad guidelines for observance. The Advisory Board
however, may adopt any procedure depending upon varying circumstances. But any
procedure that it adapts must satisfy the procedural fairness. We need not deal
with this aspect in detail since the Advisory Board consists of person who are,
or have been or are qualified to be appointed as Judges of a High Court. They
are men of wisdom and learning. Their report as envisaged under sec. 11(2) of
the Act should provide specifically in a separate part whereof as to PG NO 632
"whether or not there is sufficient cause for the detention of the person
concerned." That opinion as to sufficient cause is required to be reached
with equal opportunity to the State as well as the person concerned, no matter
what the procedure. It is important for laws and authorities not only to be
just but also appear to be just. Therefore, the action that gives the
appearance of unequal treatment or unreasonableness--whether or not any substance
in it--should be avoided by the Advisory Board. We consider that it must be
stated and stated clearly and unequivocally that it is the duty of the Advisory
Board to see that the case of detenu is not adversely affected by the procedure
it adopts.
It
must be ensured that the detenu is not handicapped by the unequal
representation or refusal of access to a friend to represent his case.
In the
instant case, since the Advisory Board has heard the high ranking officers of
the Police Department and others on behalf of the Government and detaining
authority, it ought to have permitted the detenu to have the assistance of a
friend who could have made an equally effective representation on his behalf.
Since that has been denied to the detenu, the High Court, in our opinion, was
justified in quashing the detention order.
It
was, however, sought to be made out for the State that the police officers were
present before the Board only to produce the record and they did not do
anything further.
But
the record shows otherwise. The officers were not there only to produce the
records. They were in fact heard by the Advisory Board obviously on the merits
of the matter and that makes all the difference in the instant case.
In the
result, we agree with the conclusion of the High Court and dismiss this appeal.
R.S.S.
Appeal dismissed.
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