Case BriefsSupreme Court

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

 

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Sheel Nagu and Anand Pathak, JJ., allowed a petition which was filed challenging the order of preventive detention passed by the District Magistrate detaining the petitioner for a period of three months by invoking the provisions of Section 3(3) of the National Security Act (“NSA”).

Petitioner dealt in the business of snacks (Namkeen) at Guna for which he had obtained licence under the Food Safety and Standards Act, 2006 for running such business. On receiving complaint, the SDM along with the food squad under “Food Adulteration Removal Drive” and on further investigation it was found that food stuffs and raw material lying thereat were prima facie found to be substandard, misbranded and not according to the provisions of FSSAI. Samples taken were sent for analysis. On 08-02-2021 itself the

State had forwarded the impugned order along with grounds and the supportive relevant material to the Central Government. Petitioner had challenged the impugned order of preventive detention on the ground that reasons for passing the impugned order do not pass the test of breach of public order.

The Court refrained from going into the said grounds of merits rather commented that the petition deserved to be allowed. The Court explained that,” The concept of preventive detention is not punitive. Its purpose is to prevent the breach of public order or its likelihood in future. Thus, by its very nature, power of preventive detention is exercised to prevent and not to punish.”

The Court further observed that the order of preventive detention passed by the District Magistrate Guna was forwarded to the Central Govt after 10 days of passing of the order which breaches the maximum limit of 5 days prescribed in Section 8 of NSA in ordinary circumstances. The Court referred to the Supreme Court judgment in A.K. Roy v. Union of India, (1982) 1 SCC 271 wherein it was mentioned that,

            “76. The objection of the petitioners against the provision contained in S.8 (1) is that it unreasonably allows the detaining authority to furnish the grounds of detention to the detenue as late as five days and in exceptional cases 10 days after the date of detention. This argument overlooks that the primary requirement of S.8 (1) is that the authority making the order of detention shall communicate the grounds of detention to the detenue “as soon as may be”. The normal rule, therefore, is that the grounds of detention must be communicated to the detenue without avoidable delay. It is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily and not later than 10 days if there are exceptional circumstances. If there are any such circumstances, the detaining authority is required by S. 8 (1) to record its reason in writing. We do not think that this provision is open to any objection.”

The Court further relied on the judgment of Supreme Court in Hetchin Haokip v. State of Manipur, (2018) 9 SCC 562 and explained that in the instant case, the State in its affidavit had disclosed that after passing of the order of preventive detention on the case was forwarded by the District Magistrate to the State Government under Section 3 (4) after four days. Neither in the order impugned nor in the reply filed by the State there was any explanation for not forwarding the case to the State Government earlier. The delay of four days had not been explained by the official respondents.

The Court allowed the petition and further stated that “The law of preventive detention is an exception to the fundamental right to personal liberty u/Art.21 of the Constitution and therefore has to be strictly construed. Any aberration by the Competent Authority in complying with the statutory procedure laid down under the NSA is not only to be frowned upon but interfered with by the superior court.”[Sulabh Sharma v. State of M.P., 2021 SCC OnLine MP 572, decided on 17-03-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission India has taken suo motu cognizance of media reports that a 13-year-old girl belonging to Scheduled Caste was gang-raped and killed when she had gone to relieve herself on the farmland owned by one of the accused on 15-08-2020. Reportedly the victim was tortured before strangled to death. It is mentioned in the news report that there is a toilet in the victim’s house but it’s not functional.

The Commission has issued notices to the Chief Secretary and DGP, Government of Uttar Pradesh calling for detailed reports in the matter within 06 weeks including disbursement of the statutory relief as per rules framed under provisions of the SC/ST (POA) Act to the family of the victim, action taken against the guilty and the status of the FIRs registered in the matter. The Chief Secretary is also expected to sensitize the district authorities in the State to create awareness that the toilets should not be constructed for mere fulfillment of the government records, they are to be actually made functional.

The Commission found it appropriate to forward a copy of the news item to the Secretary, Union Ministry of Jal Shakti, which is the Nodal Ministry for the ‘Swachchh Bharat Abhiyan.’ It is expected from the Ministry to issue guidelines to all the States and Union Territories to ensure that the toilets are not only constructed but also used to make the country clean and save the women from the heinous crimes committed by anti-social elements when they go out to relieve themselves. He is also expected to respond within 6 weeks.

According to the media reports, both the accused have been arrested by the police. The Senior Superintendent of Police, Kheri has reportedly stated that the FIR has been registered under relevant sections of IPC and POCSO Act. He has further added that the National Security Act will be slapped against the accused who were arrested by the police within few hours after the incident.


National Human Rights Commission

[Press Release dt. 17-08-2020]

COVID 19Legislation UpdatesNotifications

No. F.2/1/88-HP-II/ Pt.-I/775-78.—Whereas the Lt. Governor of the National Capital Territory of Delhi is satisfied that it is necessary to do so;

Now, therefore, in exercise of the powers conferred by sub-section (3) of section 3, read with clause (e) of Section 2 of the National Security Act, 1980, the Lt. Governor of the National Capital Territory of Delhi is pleased to direct that during the period 19/04/2020 to 18/07/2020 the Commissioner of Police, Delhi may also exercise the powers of detaining authority under sub-section (2) of the section 3 of the aforesaid Act.


HOME (POLICE-II) DEPARTMENT

[Notification dt. 07-04-2020]

Case BriefsHigh Courts

Manipur High Court: A Bench of Lanusungkum Jamir and Kh. Nobin Singh, JJ., released Kishorchandra Wangkhem, the 39-year old journalist who was detained under the National Security Act, 1980 for criticising the Government through Facebook posts.

At about 2 pm on 27-11-2018, Kishorchandra was picked up by some unidentified persons on Police uniform and brought to Imphal Police Station where he was detained for about 5 hours. On the same day, a detention order under NSA was passed against him by the District Magistrate, and he was taken to Manipur Central Jai, Sajiwa, where he had been lodged since.

S. Chitranjan, Advocate led arguments on behalf of Kishorchandra and challenged his detention under NSA as illegal and unlawful contending that he did not get a chance for making an effective representation against his detention. Per contra, N. Kumarajit, Advocate General of Manipur and S. Suresh, Additional Solicitor General appearing for the Union of India supported the detention order.

The primacy issue in focus was: whether the detention order date 27.22.2018 stood vitiated due to non-supply of the picture with captions alleged to have been posted by the petitioner on his Facebook wall on 7.8.2018 and non-supply of the duplicate copy of the CD containing four video clips relied on by the DM, thereby preventing the petitioner from making an effective representation before the concerned authority?

The High Court found that the pictures in controversy and the CD concerned, which found mention in the ‘grounds of detention’ were not supplied to Kishorchandra. This, as per the Court, prevented the petitioner from making an effective representation against his detention. The Court said: “We have, therefore, no hesitation to come to the conclusion that non-furnishing of the pictures with copies alleged to have been posted by the petitioner on his Facebook wall on 7-8-2018 and compact disc containing four video clips, vitiates the very detention order dated 27-11-2018.”

In such view of the matter, the writ petition filed by Kishorchandra Wangkhem was allowed and the detention order passed against him under the National Security Act was set aside. He was directed to be set at liberty forthwith unless wanted in other cases. [Kishorchandra Wangkhem v. State of Manipur, WP (Crl.) No. 18 of 2018, dated 04-03-2019]