[Preventive Detention] Kar HC | Non-consideration of representation at the earliest opportunity could lead to release of detenu; Guidelines/Directions issued

Karnataka High Court: A Division Bench of B V Nagarathna and Hanchate Sanjeev Kumar, JJ. allowed the petition and directed the release of the petitioner.

The facts of the case are such that the petitioner is a resident of Bengaluru and owing to financial difficulties, he was constrained to discontinue his studies in 9th standard and was forced to take up hard menial jobs for supporting his family and is herein alleged to be engaged in criminal activities creating an atmosphere of fear among the general public.

The Court observed that the petitioner submitted a detailed representation to the second respondent as well as the Chairman of the Advisory Board (though, by then, the report had already been submitted by the Advisory Board) through the third respondent on 12.01.2021, setting out several grounds for revocation of the detention order. This plea has to be considered in light of the fact that there was an earlier representation made by the petitioner but the same has been suppressed before this Court. Therefore, this is not a case where there was no representation made by the petitioner prior to the report of the Advisory Board or confirmation of the order of detention by the State on receiving of the said report.

The Court observed that in the instant case there has been no consideration of the representation made by the petitioner under Section 14 of the Act till date, as it was made on 12.01.2021 and there has been a lapse of five months.

Whether, in the absence of consideration of the representation of the petitioner which was made on the continuation of the detention of the petitioner is valid or vitiated?

The most significant right that a detenu has is to have his representation considered, under Section 14 of the Act as early as possible i.e., at the earliest point of time from its submission to the jail authority. The right of consideration of a representation made by the detenu under Section 14 of the Act is a critical and important right. Section 14 of the Act envisages a duty on the State Government regarding consideration of the representation at the earliest point of time and to communicate the order disposing of the representation to the detenu, which is a facet of the principles of natural justice.

Therefore, in order to avoid hardship or prejudice being caused to the detenu inasmuch as his right to liberty under Article 21 is affected, the representation must be considered at the earliest point of time. In addition, there should be a communication of the order passed on the representation, either, accepting the same and releasing the detenu forthwith by revocation of the order of detention or a modification of a detention order wherein there could be a shorter period of detention, then what has been ordered in the confirmatory order under Section 12 read with Section 13 of the Act. More importantly, if the representation is rejected, then there must be reasons assigned for doing so and the order of rejection along with the reasons must be communicated to the detenu. Any delay in supplying the order of rejection of the representation would also cause prejudice to the detenu as he would be deprived of his right to seek remedy vis-à-vis the order of rejection, which may prove fatal to the order of preventive detention. In other words, consideration of a representation made by a detenu, post confirmation of the order of preventive detention is to be read into the principles of natural justice and also Article 21 of the Constitution. Non-consideration of such a representation would also be arbitrary and oppressive and therefore, an infraction of Articles 14 as well as 21 of the Constitution.

It is trite that the law of preventive detention must not only comply with Article 22 of the Constitution, but also fulfill the mandate of Articles 21 and 14.

The non-consideration of the representation in the instant case has adversely affected the right of the petitioner inasmuch as the failure of the State Government to consider the representation till date is an instance of infraction of Article 21 of the Constitution of India.

The Court observed that it is settled law that an order of preventive detention is made on the subjective satisfaction of the detaining authority. The Act also provides for revocation or modification of the order of detention. Such a power could be exercised suo motu by the State. It is a power coupled with the duty when it is exercised on the detenu under Section 14 of the Act is a right of the detenu and a corresponding duty is cast on the State Government, then administrative delay cannot imperil the said right. Inordinate delay in considering the said representation could lead to release of the detenu. Even though Section 14 does not prescribe any time limit for consideration of the said representation, the same must be considered at the earliest point of time.

Following guidelines/directions are issued even after the confirmation order is made by the State, the obligation to act under Section 14 of the Act cannot be ignored:

(i) That whenever an order of detention is followed by an order of confirmation of detention made by the State under Section 12 read with Section 13 of the Act, liberty is reserved to the detenu to make a representation;

(ii) In such a case, the representation would have to be considered by the State under Section 14 of the Act in the context of revocation or modification of the order of detention;

(iii) Such a representation, when made to the Jail Superintendent/Jail Authority by the detenu, must be transmitted to the concerned officer/authority who is vested with the responsibility/obligation to consider such a representation at an earliest possible time. The use of technology in this regard has to be underscored. Such a representation can be scanned or sent in any other instantaneous mode by the Jail Authority to the concerned officer or authority;

(iv) If a case-worker is entrusted with the file of a particular detenu, it is the duty of the case-worker to put up the representation immediately on receipt of the same before the concerned officer or authority for consideration of the same;

(v) For the said purpose, the State has to devise a system or channel under which such representations could reach the concerned officer or authority in an expeditious manner.

(vi) On such representation being placed before the concerned authority or officer, the same has to be considered as expeditiously as possible and in the earliest point of time. What is the said time cannot be defined in specific terms. The same would depend upon the nature of the representation made by the detenu.

(vii) It is needless to observe that precious time cannot be lost in the transmission of the representation to the concerned department and thereafter, in placing the same by the case worker before the concerned officer or authority. Hence, the State may issue further guidelines/directions in that regard to all the jail authorities/jail superintendents wherein persons are detained under the respective laws provided for preventive detention so that the representations made post confirmation of such detention are considered in time under Section 14 of the Act.

(viii) On consideration of the representation of the detenu, the order made thereon must be communicated to the detenu through the concerned jail authorities so that if the order is for release of the detenu, he is released forthwith or if it is modification of the detention order, in which event, it could be an earlier release and the same would also have to be intimated to the detenu. Similarly, if the representation is rejected, it must also be communicated to the detenu forthwith so as to enable the detenu to take recourse in accordance with law.

(ix) On such communication being sent, the jail authority, which receives the same, must inform the authority which has made the order, about the receipt of communication and about the intimation of the said communication to the detenu.

(x) The State Government to issue guidelines to the respective jail authorities and other officers/authorities in the Department of Home Affairs with regard to the aforesaid directions.

The Court held “..In the absence of detenu’s representation being considered till date, it has led to violation of his rights under Article 21 of the Constitution of India.”

“…..we find that the petitioner cannot be detained any further under the order of the preventive detention dated 25.09.2020.”

[Rizwan Pasha v. Commissioner of Police, Writ Petition Habeas Corpus No.29 of 2021, decided on 15-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for Petitioner: Adv. Tigadi Veeranna Gadigeppa

Counsel for respondent: Adv. V.S. Hegde and Adv. Thejas P.

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