Union of India & Ors Vs. Manish Bahal
@ Nishu [2001] Insc 309 (9
July 2001)
Ruma
Pal, D.P.Mohapatro D.P. Mohapatra, J.
Special Leave Petition (crl.) 1299 of 2000
Leave
granted.
The
Union of India through the Secretary, Ministry of Home Affairs, the Lt. Governor
of NCT of Delhi, the Commissioner of Police, Delhi and the Superintendent,
Central Jail, Tihar, have filed this appeal assailing the judgment of the Delhi
High Court dated 14th December, 1999 in Criminal Writ Petition No.809 of 1999
quashing the order of detention under section 3(2) of the National Security
Act, 1980 (hereinafter referred to as 'the Act') and directing immediate
release of the respondent unless required in connection with any other case. As
appears from the impugned judgment the order of detention has been quashed by
the High Court solely on the ground that the Lt. Governor of Delhi rejected the representation of the detenu-
respondent taking into consideration the report submitted by the Advisory Board
and therefore, did not consider the representation independently.
The
Commissioner of Police, Delhi vide order dated 17.5.1999 ordered
the detention of the respondent under section 3(2) of the Act with a view to
prevent him from indulging in activities prejudicially affecting the public
order.
The
said order of detention was approved by the Lt. Governor of NCT of Delhi under
section 3(4) of the Act vide order dated 20 May, 1999. On 4.6.1999 the respondent
addressed a representation to the Advisory Board against the order of his
detention. The Advisory Board submitted its report on 10.6.99 stating that
there was sufficient cause for the detention of the respondent. The report was
received at the Police Headquarters on 11.6.1999. Thereafter the Lt. Governor
on consideration of the report along with other material placed on record
confirmed the order of detention and directed that the detenu shall be detained
for a period of 12 months from the date of his detention i.e. 18.5.1999.
By a
separate order passed on the same day (21.6.99) the Lt. Governor rejected the
representation made by the respondent to the Advisory Board. Thereafter the
respondent filed the writ petition in the High Court challenging the detention
order dated 3rd August,
1999.
The
question that arises for consideration is whether the High Court is right in
holding that there was no independent consideration of the representation
submitted by the detenu by the Lt. Governor.
A
perusal of the relevant provisions of the Act reveals the scheme which so far
as material for the purpose of this case may be stated thus :
In
sub-section (3) of section 3 power is vested in the State Government to pass
order that District Magistrate or Commissioner of Police may also, if satisfied
as provided in ss(2) exercise the power conferred by the said sub-section
within their respective local jurisdiction. In the proviso to the said
sub-section maximum period during which such an order shall remain in force has
been prescribed. In section 3(2) of the Act it is provided that the Central
Government or the State Government may, if satisfied with respect to any person
that with a view to preventing him from acting in any manner prejudicial to the
security of the State or from acting in any manner prejudicial to the
maintenance of public order or from acting in any manner prejudicial to the
maintenance of supplies and services essential to the community it is necessary
so to do, make an order directing that such person be detained. Sub-section (4)
of the said section mandates that when an order of detention is made by an
officer mentioned in ss(3) he shall forthwith report the facts to the State
Government to which he is subordinate together with the grounds on which the
order has been made and such other particulars as, in his opinion, have a
bearing on the matter, and no such order shall remain in force for more than
twelve days after the making thereof unless, in the meantime, it has been
approved by the State Government.
In
sub-section(5) it is provided that when any order is made or approved by the
State Government under this Section the State Government shall within seven
days, report the fact to the Central Government together with the grounds on
which the order has been made and such other particulars as, in the opinion of
the State Government, have a bearing on the necessity for the order.
In
section 8(1) it is laid down that when a person is detained in pursuance of a
detention order, the authority making the order shall, as soon as may be, but
ordinarily not later than five days and in exceptional circumstances and for
reasons to be recorded in writing, not later than ten days from the date of
detention communicate to him the grounds on which the order has been made and
shall afford him the earliest opportunity of making a representation against
the order to the appropriate Government.
The
constitution of the Advisory Boards is provided in Section 9 of the Act.
In
section 10 it is laid down that save as otherwise expressly provided in the
Act, in every case where a detention order has been made under the Act, the
appropriate Government shall, within three weeks from the date of detention of
a person under the order, place before the Advisory Board constituted by it
under section 9, the grounds on which the order has been made and the
representation, if any, made by the person affected by the order, and in case
where the order has been made by an officer mentioned in sub-section(3) of the
Section, also the report by such officer under sub-section (4) of that section.
Section
11 which contains provision regarding procedure of Advisory Boards states that
the report of 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.
In
Section 12 sub-section(1) it is laid down that in any case where the Advisory
Board has reported that there is, in its opinion, sufficient cause for the
detention of a person, the appropriate Government may confirm the detention
order and continue the detention of the person concerned for such period as it
thinks fit. Sub-section (2) of the section provides that in any case where the
Advisory Board has reported that there is, in its opinion, no sufficient cause
for the detention of a person, the appropriate Government shall revoke the
detention order and cause the person concerned to be released forthwith.
The
High Court, as noted earlier, has quashed the order of detention only on the
ground that the Lt. Governor rejected the representation made by the detenu-respondent
taking into consideration the report of the Advisory Board.
The
High Court has placed reliance on the decision of the Constitution Bench of
this Court in the case of K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of
India and others (1991 (1) SCC 476). The High Court has observed that in view
of the settled position of law which has been laid down by this Court such
disposal of the representation offends the right of the detenu enshrined in
Article 22(5) of the Constitution.
Shri Ashok
Bhan, learned counsel for the appellant contended that the decision of the High
Court is based on a misreading and mis-construction of the decision of this
Court in K.M. Abdulla case (supra). The learned counsel submitted that the High
Court is in error in its conclusion that the Lt. Governor did not independently
consider the representation of the respondent merely from the fact that the
order rejecting the representation was passed after receipt of the report of
the Advisory Board.
Per
contra Shri Harjinder Singh, learned counsel appearing for the respondent,
supported the judgment of the High Court. He urged that the view taken by the
High Court is in accord with the ratio of the Constitution Bench judgment in
K.M. Abdulla case (supra).
Para
11 of the Judgment of K. M. Abdulla case (supra) on which reliance has been
placed by the High Court in its impugned judgment reads as follows:
"It
is now beyond the pale of controversy that the constitutional right to make
representation under Clause (5) of Article 22 by necessary implication
guarantees the constitutional right to a proper consideration of the
representation. Secondly, the obligation of the government to afford to the detenu
an opportunity to make representation and to consider such representation is
distinct from the government'' obligation to refer the case of detenu along
with the representation to the Advisory Board to enable it to form its opinion
and send a report to the government. It is implicit in Clauses (4) and (5) of
Article 22 that the government while discharging its duty to consider the
representation, cannot depend upon the views of the Board on such
representation. It has to consider the representation on its own without being
influenced by any such view of the Board. The obligation of the government to
consider the representation is different from the obligation of the Board to
consider the representation at the time of hearing the references. The
government considers the representation to ascertain essentially whether the
order is in conformity with the power under the law. The Board, on the other
hand, considers the representation and the case of the detenu to examine
whether there is sufficient case for detention. The consideration by the Board
is an additional safeguard and not a substitute for consideration of the
representation by the Government. The right to have the representation
considered by the government, is safeguarded by Clause (5) of Article 22 and it
is independent of the consideration of the detenu's case and his representation
by the Advisory Board under Clause (4) of Article 22 read with section 8(c) of
the Act." In the said decision the Constitution Bench referring to the
several decisions decided earlier held that the right to have the
representation considered by the Government is safeguarded by clause (5) of
Article 22 and it is independent of the consideration of the detenu's case and
his representation by the Advisory Board under clause (4) of Article 22 read
with section 8(c) of the Act (COFEPOSA Act, 1974). But in that very judgment in
paragraphs 19-20 the Bench observed that there is no constitutional mandate
under clause (5) of the Article 22 muchless no statutory requirement to
consider the representation before confirming the order of detention; as long
as the Government without delay considers the representation with an unbiased
mind there is no basis for concluding that the absence of independent
consideration is the obvious result if the representation is not considered
before the confirmation of detention. This Court held that indeed there is no
justification for imposing this restriction on the determination of the
Government. (emphasis supplied) In para 20 of the judgment, elucidating the
point, the Constitution Bench observed :
"It
is necessary to mention that with regard to liberty of citizens the court
stands guard over the facts and requirements of law, but court cannot draw
presumption against any authority without material. It may be borne in mind
that the confirmation of detention does not preclude the government from
revoking the order of detention upon considering the representation. Secondly,
there may be cases where the government has to consider the representation only
after confirmation of detention. Clause (5) of Article 22 suggests that the
representation could be received even after confirmation of the order of
detention. The words 'shall afford him the earliest opportunity of making a
representation against the order' in Clause (5) of Article 22 suggest that the
obligation of the government is to offer the detenu an opportunity of making a
representation against the order, before it is confirmed according to the
procedure laid down under Section 8 of the Act. But if the detenu does not
exercise his right to make representation at that stage, but presents it to the
government after the government has confirmed the order of detention, the
government still has to consider such representation and release the detenu if
the detention is not within the power conferred under the statute. The
confirmation of the order of detention is not conclusive as against the detenu.
It can be revoked suo motu under Section 11 or upon a representation of the detenu.
It seems to us therefore, that so long as the representation is independently
considered by the government and if there is no delay in considering the
representation, the fact that it is considered after the confirmation of
detention makes little difference on the validity of the detention or
confirmation of the detention. The confirmation cannot be invalidated solely on
the ground that the representation is considered subsequent to confirmation of
the detention. Nor it could be presumed that such consideration is not an
independent consideration. With all respect, we are not inclined to subscribe
to the views expressed in V.J.Jain V. Shri Pradhan ( 1979 (4) SCC 401);Om Prakash
Bahl vs. Union of India W.P.No.845 of 1979 decided on October 15,
1979(Unreported) and Khairul Haque W.P.No.246 of 1969 decided on September 10,
1969 (Unreported) cases.
They
cannot be considered to be good law and hence stand overruled.
In Ram
Sukrya Mhatre vs. R.D.Tyagi (1992 Supp.( 3) SCC 65) this Court relying on the
decision in K.M.Abdulla Kunhi (supra) case held that it is settled law that
right to representation under Article 22(5) includes right to expeditious
disposal not only by the State Government under the relevant provisions of the
statute, but also by Central Government. But in each case it is one of fact to
be ascertained whether the Central Government or the State Government, as the
case may be, has caused delay due to negligence, callous inaction, avoidable
red-tapism and undue protraction by the authorities concerned. This Court
observed that expedition is the rule and delay defeats mandate of Article
22(5). Taking note of the decision in Abdul Salam & Thiyyan v. Union of
India (1990 (3) SCC 15) it was observed that no hard and fast rule as to the
measure of reasonable time can be laid down and each case has to be considered
from the facts presented therein and that if there is no negligence or callous
inaction or avoidable red- tapism on the facts in that case, it does not
warrant interference.
In the
case of Moosa Husein Sanghar vs. State of Gujarat and ors. (1993 (1) SCC 511) this Court relying on K. M. Abdulla Kunhi
case (supra) and other decisions held, inter alia, that in a case where the
representation has been received before the case is referred to the Advisory
Board, the appropriate Government must consider the same before the matter is
referred to the Advisory Board and it would be justified in not considering the
same only if there is no reasonable time to consider and dispose of the
representation before the case is referred to the Advisory Board and in such
case, the representation may be forwarded to the Advisory Board along with the
case of the detenu. Referring to the provisions under Article 21 and 22(5) of
the Constitution the Bench observed:
"Having
regard to the importance of the safeguard of a representation under Article
22(5) for protection of the right to personal liberty guaranteed under Article
21 of the Constitution, this Court has repeatedly emphasised the need for
expeditious consideration of the representation submitted by a detenu and has
insisted that the representation must be disposed with a sense of urgency
without avoidable delay. The appropriate Government would not be justified in
postponing the consideration of the representation while the matter is pending
consideration before the Advisory Board because the obligation of the
Government to consider the representation is different from that of the
Advisory Board." State of Gujarat and others ( 1993 Supp. ( 3 ) SCC 754),
in which the representation was received by the State Government on 20.3.1993,
the State Government decided to keep it pending awaiting the report of the
Board and on receipt of the report on March 23, 1993, considered the case and
the representation was rejected on the even date, this Court held that keeping
the representation pending awaiting the decision of the Board and thereafter
its rejection are illegal. In para 9 of the judgment this Court referring to
the interpretation of the word 'forthwith' under Article 22(5) observed that
the expression would mean 'as soon as may be' that the action should be
performed by the authority with reasonable speed and expedition with a sense of
urgency without any unavoidable delay; that no hard and fast rule could be laid
nor a particular period is prescribed; that there should not be any
indifference or callousness in consideration and disposal of the
representation. This Court made it clear that the determination of the case
depends on the facts and circumstances of each case.
In Smt.
Gracy vs. State of Kerala ((1991 (2) SCC 1) a Bench of three learned Judges of
this Court construing the provisions of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988 and Articles 22(4) and (5)
of the Constitution held that the nature of duty imposed on the detaining
authority under Article 22(5) in the context of the extraordinary power of
preventive detention is sufficient to indicate that strict compliance is
necessary to justify interference with personal liberty and it is more so since
the liberty involved is of a person in detention and not of a free agent. The
obligation of the government to consider the representation is different from,
independent of and in addition to the obligation of the Board to consider it at
the time of hearing the reference before giving its opinion to the government.
In that case during the pendency of the reference before the Advisory Board the
detenu made his representation and addressed it to the Advisory Board. The
Advisory Board considered the reference relating to the detenu made by the
Central Government and also the detenu's representation submitted to it and
gave the opinion that there was sufficient cause to justify his preventive
detention. The Central Government then made the order confirming his detention.
This Court observed that detenu's representation was not considered by the
Central Government independently at any time. In the counter affidavit Central
Government's stand was that since the representation was addressed to the
Advisory Board and not to the Central Government there was no obligation on it
to consider the same independently. Rejecting this stand of the Central
Government and allowing the writ petition filed on behalf of the detenu this
Court observed:
"The
contents of Article 22(5) as well as the nature of duty imposed thereby on the
detaining authority support the view that so long as there is a representation
made by the detenu against the order of detention, the aforesaid dual
obligation under Article 22(5) arises irrespective of the fact whether the
representation is addressed to the detaining authority or to the Advisory Board
or to both. The mode of address is only a matter of form which cannot whittle
down the requirement of the constitutional mandate in Article 22(5) enacted as
one of the safeguards provided to the detenu in case of preventive detention.
In the
present case there had been a breach by the Central Government of its duty
under Article 22(5) to consider and decide the representation independently of
the Advisory Board's opinion. The order of detention as well as the order of
its confirmation passed by the Central Government are, therefore, quashed.
This
shall not, however, affect the detenu'' prosecution for the alleged offence and
it shall also not be construed as a direction to release him in case he is in
custody as a result of refusal of bail."" From the conspectus of the
views taken in the decisions discussed above, it is clear to us that what this
Court has consistently laid stress upon is, prompt consideration and
expeditious disposal of representations of the detenu received by the State
Government at any stage of the proceeding. The view has been taken in the light
of Article 22(4) and (5) of the Constitution. We do not find any support for
the extreme view taken by the High Court in the case that merely because the
report of the Advisory Board was placed before the Detaining Authority (Lt.Governor)
along with other papers for disposal of the representation made by the detenu
there was no independent consideration of the same by the authority. In the
scheme of things under the Act, the report of the Advisory Board is not an
irrelevant material in the exercise.
The
specific question that arises for consideration is whether on the facts and
circumstances of the case on hand the order passed by the Lt. Governor
rejecting the representation of the detenu - respondent can be held to have
been vitiated on the ground that it was not passed on independent
consideration. It is relevant to make it clear that the High Court has not
recorded any finding that there was delay or callousness or bureaucratic
lethargy on the part of the State Government in dealing with the representation
of the respondent or that the Lt. Governor had kept the representation
submitted before him awaiting the report of the Advisory Board. No finding is
also recorded by the High Court that the Lt. Governor solely depended on or
relied upon the report of the Advisory Board for passing the order rejecting
the representation. It has also not been found that the report of the Advisory
Board was the only material placed before the Lt. Governor while submitting the
representation for his consideration. In such circumstances, we are of the view
that the High Court committed error in holding that the order of the Lt.
Governor rejecting the representation of the detenu was not based on his
independent consideration. At the cost of repetition we may state that the High
Court drew such an inference solely on the ground that the report of the
Advisory Board was also placed before the Lt. Governor while considering the
representation of the respondent. It is relevant to note here that the
observations made by the Constitution Bench in the case of K.M.Abdulla Kunhi
(supra) and other decisions noted earlier were made with a view to bring home
the importance of expeditious consideration and disposal of representation of a
detenu under the preventive detention laws in the light of the right vested in
the detenu under Articles 22(4) and (5) of the Constitution.
On the
discussions made and the reasons stated in the foregoing paragraphs, we are
constrained to hold that in the facts and circumstances of the case the
judgment of the High Court is unsustainable. Accordingly, the appeal is
allowed. The judgment dated 14.12.1999 in Criminal Writ Petition No.809/99 is
set aside. Since about five months have elapsed after the judgment of the High
Court was delivered, we leave it open to the detaining authority to decide
whether the respondent should be taken in detention to complete the unexpired
period of detention.
Back