Madras High Court: In a petition filed under Article 226 of the Constitution of India praying to issue a writ of habeas corpus and calling for the entire records in connection with the detention order passed, and to set aside the same, the division bench of S.Vaidyanathan and A.D.Jagadish chandira, JJ. has observed that the protection guaranteed under Article 21 extends even to person who are undergoing imprisonment as a convict prisoner, and he does not lose his fundamental rights merely because he is convicted either as a convict prisoner or detained pursuant to a preventive detention order. Thus, the Court directed the State to pay a sum of Rs. 5,00,000/- as the detenue has been kept in illegal detention for 128 days.
The Court observed that as the order of detention passed against the detenue stands revoked as of now and the detenue has been released, there was no need to dwell on the validity and correctness of the detention order and the question to consider now is that, whether the detenue is entitled to any compensation and if so, the quantum of such compensation.
The Court observed that the sequence of events in the case reveals beyond any doubt that it is a classic case of bureaucratic lethargy and slumber, which has played a lot in depriving the personal liberty of a citizen guaranteed under Article 21 of the Constitution of India.
The Court took note of the Section 12(2) of the Tamil Nadu Act, 1982 (‘the Act’) and observed that as per the said section, when the advisory board opined and reported that there is no sufficient cause for the detention of the person, the State Government shall revoke the detention order and cause the person to be released forthwith, whereas, in this case, the petitioner’s wife was released after a period of 128 days.
The Court further observed that the personal liberty of a citizen has been very much guaranteed under Article 21 of the Constitution of India and the expression “Person” in the said provision is not to be confined only to citizens but, it extends to every person regardless of the circumstance in which a person is placed. Thus, it implies that the protection guaranteed under the above provision extends even to persons who are undergoing imprisonment as a convict prisoner, and he does not lose his fundamental rights merely because he is convicted either as a convict prisoner or detained pursuant to a preventive detention order. However, a person could be deprived of his life or personal liberty only in accordance with the procedure established by law and that procedure cannot be arbitrary, unfair, unreasonable one or it cannot be whimsical and fanciful.
The Court viewed that the terms “shall revoke” and “released forthwith” in Section 12(2) of the Act when read together express a strong assertion of the legislature in protecting the personal liberty as guaranteed under the Constitution and whether such intention have been properly appreciated by the respondents in the case is the question to be examined.
The Court noted that the advisory board has opined that there was no sufficient cause for detention and thereby the order of detention has been revoked by the Government, but the said order was not communicated to the detenue for a long time, further, the sequence of events speaks about the slumber on the part of the bureaucracy, which had taken away the personal liberty of the petitioner’s wife.
The Court took note of the ruling in Pramod Kumar Garg v. Union of India, 1994 SCC OnLine Del 346, wherein the Court held that “it is apparent, that the moment opinion of the advisory board is received that there is no sufficient cause for the detention of the detenu, the detaining authority shall revoke the detention order and cause the person to be released forthwith”.
The Court also took note of the decision in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, wherein the Court held that “this Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim, whose fundamental rights under Article 21 of the Constitution of India are flagrantly infringed“.
The Court further referred to the ruling in D.K. Basu v. State of W.B., (1997) 1 SCC 416 wherein the Court held that “grant of compensation in proceedings under Article 32 or 226 of the Constitution for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong door and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen“. It also took note of the decision in Bhola Kumhar v. State of Chhattisgarh, 2022 SCC OnLine SC 837, wherein the Court held that “when a person is detained beyond reasonable date it would be imprisonment or detention sans sanction of law and would thus not only violate Article 19(d) but also Article 21 of Constitution of India and thereby held such a person is entitled for compensation in terms of money“, and observed that the Court in the above case has without making any observation as to civil remedy, has passed an order granting compensation to be paid by the State in terms of money holding it vicariously liable for the act committed by its officers in the course of employment.
The Court observed that it is the duty of the Court to see that any individual who crosses the boundaries of law is dealt with appropriately, but it is also the foremost duty of the Courts to uphold the dignity of personal liberty. Thus, as the detenue has been kept in illegal detention for 128 days, the Court directed the State to pay a sum of Rs. 5,00,000/- to the detenue within 6 weeks from the date of receipt of copy of this order.
[Manokaran v. State of Tamil Nadu, 2022 SCC OnLine Mad 4697, decided on 21.09.2022]
Advocates who appeared in this case:
For Petitioner: Advocate K.A.S. Prabhu
For Respondents: State Public Prosecutor Mohamed Ali Jinnah
Additional Public Prosecutor M. Babu Muthumeeran