National Security Act| Delay in considering representation; non-communication of rejection strike at the heart of fundamental rights of detenu: SC

Supreme Court: In a case where the Government caused unreasonable delay in considering the representation and thereafter failed to communicate the rejection to a person detained under Section 3(2) of National Security Act 1980 (NSA), the 3-judge bench of Dr. DY Chandrachud, Vikram Seth and BV Nagarathna, JJ has held that the procedural rights of the detenu emanating from Article 22 of the Constitution and Section 8 of the NSA were not sufficiently protected in the present case.

“The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.”

Case Timeline 

  • The order of detention was passed on 11 May 2021 and the appellant was detained on 12 May 2021.
  • The order of detention was approved by the State Government on 13 May 2021, upon which the State Government submitted the order of detention to the Central Government on the same day.
  • On 18 May 2021, the detenu submitted a simultaneous representation before the District Magistrate, State Government and the Central Government.
  • The representation was communicated by the District Magistrate to the State Government and the Central Government on 20 May 2021.
  • Representation was rejected by the Advisory Board on 15 June 2021.
  • The State Government rejected the representation, after the decision of the Advisory Board. While the affidavit filed before the High Court, did not specify the date on which the representation was rejected by the State Government, but leaves no manner of doubt that until the representation was rejected by the Advisory Board on15 June 2021, no steps had been taken by the State Government to deal with the appellant’s representation dated 18 May 2021. However, the counter-affidavit of the District Magistrate showed that the representation was rejected by the State Government on 15 July 2021.
  • The Supreme Court was neither provided with a copy of such rejection or proof of communication of this rejection to the detenu, nor an explanation for the almost 60 day delay in considering the appellant’s representation.

Analysis of the Law

Article 22(5) of the Constitution

Article 22(5) of the Constitution mandates that

  • the authority making the order shall “as soon as may be” communicate the grounds on which the order has been made to the person detained; and
  • the detaining authority shall afford to the person detained “the earliest opportunity of making a representation against the order”.

Clause 5 of Article 22 incorporates a dual requirement: first, of requiring the detaining authority to communicate the grounds of detention as soon as may be; and second, of affording to the detenu “an earliest opportunity” of making a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made. The expression “as soon as may be” imports a requirement of immediacy.

In the absence of the grounds being communicated, the detenu would be left in the dark in regard to the reasons which have led to the order of detention. The importance which the constitutional provision ascribes to the communication of the grounds as well as the affording of an opportunity to make a representation is evident from the use of the expression “as soon as may be” in the first part in relation to communicating the grounds and allowing the detenu “the earliest opportunity” of availing of the right to submit a representation. .

“The significance of Article 22 is that the representation which has been submitted by the detenu must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition.”

National Security Act, 1980

The provisions of the National Security Act 1980 subscribe to the mandate of Article 22(5). Section 3(4) contains a requirement that once an order of detention has been made, the officer making the order must forthwith report the fact to the State Government, together with the grounds on which the order has been made and other particulars which have a bearing on the matter. No such order should remain in force for more than twelve days, unless it has been approved by the State Government. In the meantime, this period is subject to the proviso which stipulates that where the grounds of detention are communicated by the officer after five days (under Section 8) but not later than ten days from the date of the detention, sub-section (4) will apply as if the words fifteen days stands substituted for twelve days. Upon the State Government either making or approving the order under Section 3, it is under a mandate under Section 3(5) to report the fact to the Central Government within seven days, together with the grounds on which the order has been made and other necessary particulars.

Article 22(5) of the Constitution provides for the communication of the grounds on which the order of detention has been made by the detaining authority “as soon as may be”. Section 8(1) uses the expression “as soon as may be”, qualifying it with the requirement that the communication of grounds should ordinarily not be later than five days and, in exceptional circumstances, for reasons to be recorded in writing not later than ten days from the date of detention. Section 8(1) also embodies the second requirement of Article 22(5) of affording to the detenu the earliest opportunity of making a representation against the order to the appropriate government.

Under Section 10, the appropriate government has to place the grounds on which the order of detention has been made within three days from the date of detention of the person together with a representation, if any, made by the person affected by the order. The Advisory Board, under the provisions of Section 11, has to submit its report to the appropriate government within seven weeks from the date of detention order after considering the relevant materials. It may call for further information from the appropriate government, or any person, or even the person concerned if they desire an opportunity to be heard in person.

Under Section 12, when the Advisory Board has reported that in its opinion there is a sufficient cause for the detention of a person, the appropriate government may approve an order of detention and continue the detention of the person for such period as it thinks fit. On the other hand, where the Advisory Board reports that in its opinion there is insufficient cause for detention, the appropriate government shall revoke the detention order and cause the person to be released forthwith.

In terms of clause (a) and (b) of sub-section (1) of Section 14, both the State Government and the Central Government have the power to revoke an order of detention.

Ruling on Facts

The Court noticed that there was absolutely no reasonable basis for explaining the circumstances in which the representation dated 18 May 2021 was not considered by the State Government until after the Advisory Board had submitted its report on 15 June 2021.

In Ankit Ashok Jalan v. Union of India, (2020) 16 SCC 127 had held that in State Government is not bound to wait on the Advisory Board’s report before deciding the representation and must do so, as expeditiously as possible.

However, in spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on 15 June 2021, the State Government took another one month in arriving at a decision on the appellant’s representation dated 18 May 2021. The State Government did not furnish any valid reasons for either of the two courses of action.

The Court hence, held that by delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously.

It was, hence, held that,

“The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA.”

[Sarabjeet Singh Mokha v. District Magistrate, Jabalpur, 2021 SCC OnLine SC 1019, decided on 29.10.2021]


Counsels

For appellant: Senior Advocate Sidharth Luthra

For State: Saurabh Mishra, Additional Advocate General


*Judgment by: Justice Dr. DY Chandrachud

 

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