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Judgment
T.S. Arunachalam, J.—This is a petition under Article 226 of the Constitution of India for issue a writ of Habeas Corpus directing the
Respondents to set (1) Murugesan, son of Chinnathambi, Murthy, son of Arunachalam and Vinayarasu, son of Arumainayagam who have been
detained under the National Security Act (Central Act 65 of 1980), at liberty.
By three different orders, C.O.C. No. 21/NSA90, C.O.C. No. 22/NSA 90 and C.O.C. No. 23/NSA 90 all dated 19th July 1990, the District
Magistrate and Collector, Thanjavur the third Respondent herein, in exercise of his powers u/s 3(3) of the National Security Act directed that the
aforestated detenus be detained and kept in custody in the Central Prison, Tiruchirapalli. The ground on which the detenus were directed to be
detained was with a view to prevent them from acting in any manner prejudicial to the maintenance of public order. The grounds of detention were
served immediately. The Government approved the detention orders on 20.7.1990.
The grounds on which the detentions were made are identical and are as follows: Tamilzhar Desiya Iyakkam under the leadership of Thiru P.
Nedumaran was supporting the demands of Liberation Tigers of Tamil Elam who are fighting for a separate State for Sri Lankan Tamils in Sri
Lanka. The Tamilzhar Desiya Iyakkam''s demands were want only defeated by the acts of Indian peace keeping force during their stay at Sri
Lanka and thus it was trying to mould the minds of the people of Tamil Nadu to support Liberation Tigers of Tamil Elam and its activities by
covertly instigating the people of the State of Tamil Nadu to raise and act against the Government of India Though the Indian peace keeping force
had been recalled long back and there was no necessity to propagate against the Indian peace keeping force and Government of India. The
Tamilzhar Desiya Iyakkam conducted photograph exhibition on 6.6.1990 with a banner in the frontage containing the slogans. The exhibition was
conducted by the Petitioners who are members of the Tamilzhar Desiya Iyakkam. The Petitioners were explaining each exhibit to the viewers,
stating that the Indian peace keeping Force had committed atrocities against the Sri Lankan Tamils. They also pointed out the photographs with
their caption, thus arousing the feelings of the Tamils. By explaining the said exhibits, the Petitioners tried to pave the way for the visitors of the
exhibition to fight against the Government of India and the Indian Army. These acts were against public order and tranquility. The Sub Inspector of
Police, Thanjavur Town West Police Station who had been to the said photo exhibition on 6.6.1990 at 9.30 p.m. heard the comments of the
viewers of the exhibition that the Indian Government of Indian peace Keeping Force had acted against the interests of Sri Lankan Tamils. The Sub
Inspector of Police also noticed the Petitioners explaining and pointing out the exhibits to the viewers. The sub Inspector of Police felt that the
Petitioners had committed offences u/s 124A and 53B of the Indian Penal Code. Further investigation in the crime was taken up by M. Kaliappan
Inspector of Police, Thanjavur. The Petitioners were remanded to Judicial Custody on 7.6.1990 by Judicial Magistrate No. 1, Thanjavur. They
were released on conditional bail on 2.7.1990 by the District and Sessions Judge, Thanjavur on condition that they should appear and sign before
the Station House Officer, Thanjavur Town West Police station daily at 9 a.m. Holding that this exhibition was a prelude to the (self determination
proclamation conference) and that allowing the detenus to remain on bail would make them indulge in further activities to covertly instigate the
people, particularly the Tamils of Tamilnadu and further recourse to normal criminal law would not have the desired effect of effectively preventing
them from indulging in activities prejudicial to the maintenance of public order and as it was considered that there was compelling necessity to
detain the Petitioners in custody under National Security Act, the impugned detention orders were clamped.
The detenus sent their representations dated 1.8.1990 through the superintendent of Central Prison, Tiruchirapalli addressed to the first and
second Respondents. The written representations of the detenus were received by the first Respondent on 20.8.1990 along with all required
informations for effective consideration of the representations. The second Respondent received the representations on 6.8.1990. There appears
to be no separate representation dated 16.8.1990 addressed to the first Respondent but the said fact need not have to detain us in the
consideration of the merits or otherwise of this writ petition.
The second Respondent called for remarks on the representations from the 3rd Respondent on 7.8.90. The remarks along with the English
version of the translated copies of the representations sent by the 3rd Respondent on 16.8.1990 were received by the second Respondent on
20.8.1990. Between 1.8.1990 and 20.8.1990, 4.8.1990, 5.8.1990/15.8.1990 18.8.1990 and 19.8.1990 were holidays. The representation of
the detenu Murugesan was examined in detail and a note for circulation was submitted to the Under Secretary, Public Department on 28.8.1990.
Again 25.8.1990 and 26.8.1990 were holidays. The under Secretary, dealt with the file on 29.8.1990. The Additional Secretary, Public and
Additional Secretary, Law dealt with the file on 30.8.1990. The Secretary, Law and order dealt with the file on 31.8.1990, 1.9.1990 and
2.9.1990 were holidays, being Saturday and Sunday. The Minister for law dealt with the file on 3.9.1990 and the government decided to reject the
representation of Murugesan. The decision of the Government was communicated in Government Letter No. 1794/90-4, public (Law and order)-
F Department dated 4.9.1990, the receipt of which was acknowledged by Murugesan on 7.9.1990.
The representation of Murthy and Viyanarasu dated 1.8.1990 were received by the second Respondent on 6.8.1990. Remarks were called for
from the 3rd Respondent on 7.8.1990. Remarks along with the English versions of the representations sent by the Collector on 16.8.1990, were
received the second Respondent on 20.8.1990. The representations of both these detenus were examined in detail and a note for circulation was
submitted to the under Secretary, Public Department on 30.8.1990. Seven holidays had intervened (4th, 5th, 15th, 18th, 19th, 25th, and 26th
August) The Under Secretary dealt with the file on 31.8.1990, 1.9.1990 and 2.9.1990 were holidays. The Additional Secretary, Public dealt with
the file on 3.9.1990. The Additional Secretary, law, dealt with the file on 4.9.1990. The Secretary, Law and order, dealt with the file on 8.9.1990.
9.9.1990 was a holiday being a Sunday. The Minister for law dealt with the file on 11.9.1990. The decision of the Government, rejecting the
representations was communicated to the detenus by letter Nos. 1936 and 1937/90-1 dated 11.9.1990 the receipt of which letters had been
acknowledged by the detenus on 14.9.1990.
The first Respondent who had admittedly received representations from all the detenus along with all the required informations for effective
consideration, took a decision to reject the representations on 29.8.1990. The detenus were informed of the decision of the Central Government
through the quickest mode of communication namely a crash wireless message, on 30.8.1990 to the Home Secretary, Government of Tamil Nadu
and the Superintendent of Central Prison, Tiruchirapalli. This message was followed by three separate letters of 31st August 1990. 26.8.1990 and
27.8.1990 were holidays.
Meanwhile the Advisory Board met on 28.8.90 and its decision that there was sufficient case for the detention of all the three Petitioners was
received by the second Respondent on 31.8.1990. It is clear from the proceedings of the Advisory Board than it had perused the grounds of
detention, the report of the detaining authority to the Government, the written representations of the detenus and the connected records apart from
hearing the representations in person of all the detenus as well as that of Thiru P. Nedumaran. The Booklets, extract of speeches and reports
produced on behalf of the detenus at the time of oral hearing before the Advisory board were also forwarded to the second Respondent by the
Advisory Board by letter dated 30.8.1990. Those records have been received by the second Respondent on 3.9.1990.
By G.O.Ms. No. 1472 dated 17.9.1990; 1473 dated 17.9.90 and 1474 dated 17.9.1990 the detentions were confirmed with a direction that
detentions would be continued for a period of 12 months from the date of their original detention.
Mr. P. Rathinam learned Advocate appearing on behalf of the detenus contended that the impugned orders of detention were mala fide and
exhibited abuse of power. The detaining authority had not acted independently. The total material placed before the detaining authority will not be
sufficient to hold that any reasonable person would decide to act against the Government of India and Indian Army. The Petitioners themselves did
not resist arrest and the normal course of law had intervened in leading to their release on bail. He has placed before Court several documents
referable to the views expressed by various individuals of their opinion of the activities of the Indian Peace Keeping Force. Though strong words
had been used by several others no action was taken against them and that was a positive indication of mala fide in these detentions. He
strenuously contended that there was no material to arrive at a conclusion that the Petitioners would indulge in similar activity in future thus
negativing the scope for disturbance of public order. It was always open for the law enforcing agency to go in for cancellation of bail in the event of
such a contingency arising in future. The detention orders would not have been passed if the detaining authority had perused Section 124A and
153B, Indian Penal Code. The representations of the detenus had not been considered with expedition and there has been clear non-compliance
of Article 22(5) of the Constitution of India. Further the two-fold right in favour of the detenus to have their representations considered
independently by the Government, irrespective of the opinion offered by the Advisory Board has been totally thwarted. On these contentions we
had heard Mr. A. Shanmugham, Additional Public Prosecutor. He submitted that as far as the delay in disposal of representations were concerned
as well as the alleged violation of the dual right of the Petitioners he had nothing more to add, than all that had been expressed in the counter
affidavit. He vehemently contended that there was no mala fide and the detention orders were clamped on subjective satisfaction arrived at on
sufficient material.
We have carefully considered the real contentions of the opposing Counsel and for the disposal of this writ petition, no other ground need have
to be probed into, except the last two contentions. We have already given several dates which would be relevant for consideration of these two
contentions. On these dates, it was argued, that the representations of the Petitioners were not considered independently by the Government, but
they had waited for the opinion of the Advisory Board. Therefore there had been no independent application of mind. A perusal of the dates
discloses that either the Government was waiting for the report of the Advisory Board before the representations were considered or there was an
unreasonable delay and a non-consideration of the representations continuously and expeditiously, as required by law. In Dr. Rahamatullah Vs.
State of Bihar and Another, the following observations were made by the Apex Court.
This Sub-article (5) provides, interalia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford
him the earliest opportunity of making a presentation against the order. The opportunity of making a representation is not for nothing. The
representation if any, submitted by the detenu is meant for consideration by the appropriate authority without any unreasonable delay, as it involves
the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the
representation tantamounts to non-compliance of Sub-article (5) of Article 22 of the Constitution.
The law is well settled that in case of preventive detention of a citizen, the obligation of the appropriate government is two fold: (i) to afford the
detenu the opportunity to make a representation and to consider the representation which may result in the release of the detenu, and (ii) to
constitute a Board and to communicate the representation of the detenu along with other materials to the Board to enable it to form its opinion and
to obtain such opinion. The former is distinct from the latter. As there is a two-fold obligation of the appropriate government, so there is a two-fold
right in favour of the detenu to have his representation considered by the appropriate government and to have the representation once again
considered by the Government in the light of the circumstances of the case considered by the Board for the purpose of giving its opinion Narendra
Purshotam Umrao Vs. B.B. Gujral and Others, and Pankaj Kumar Chakrabarty and Others Vs. The State of West Bengal,
In the instant case, the state Government did not discharge the first of the two-fold obligation and waited till the receipt of the Advisory Board''s
opinion. There was, as pointed out above, an un-explained period of twenty-four days of non-consideration of the representation. This shows
there was no independent consideration of the representation by the State Government; on the contrary they deferred its consideration till they
received the report of the Advisory Board. This is clear non-compliance of Article 22(5) as interpreted by this Court. The order of detention is,
therefore, liable to be quashed on this ground alone.
In Harish Pahwa Vs. State of U. P. and Others, , the Supreme Court observed that the representation made by the detenu has to be considered
without delay and it does not look with equanimity upon delays when the liberty of a person was concerned. The observation of the Apex Court
needs extraction.
In our opinion, the manner in which the representation made by the Appellant has been dealt with reveals a sorry state of affairs in the matter of
consideration of representation made by person detained without trial. There is no explanation at all as to why no action was taken in reference to
the representation on 4th, 5th and 25th of June, 1980. It is also not clear what consideration was given by the Government to the representation
from 13th June, 1980 to 16th June, 1980 which we find that it culminated only in a reference to the law Department nor it is apparent why the law
Department had to be consulted at all. Again we fail to understand why the representation had to travel from table to table for six days before
reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier
occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other
department, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of
action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to
determine representations of the character above mentioned with the utmost expedition which means that the matter must be taken up for
consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance
in connection with it) until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no
option but to declare the detentions un-constitioned constitutional
In Vijay Kumar Vs. State of Jammu and Kashmir and Others, the Supreme Court emphasised the need for a continuous and expeditious
consideration of the representations and observed that any slackness in this behalf not properly explained, would be denial of protection conferred
by the Statute and would result in invalidation of the order. In MRS. Nafisa Khalifa Ghanem v. Union of India 1982 SC (Cri) 236 , it was
observed that orders of detention which touch the valuable rights of citizens and their liberty are matters of moment and cannot be dealt with in a
casual or routine manner. The necessary safeguards laid down by the Supreme Court and enshrined in Article 22(5) of the Constitution have to be
complied with however onerous and difficult the task may be. Moreover, with huge resources at the commend of the State, it is not at all difficult
for the detaining authority to see that these little things are complied with so that the detenu does not complain that the authorities try to play with
his liberty. The detenu has an independent constitutions right to have the representation considered by the detaining authority irrespective of
whatever the Advisory Board may do. In that case although the representation had been received by the detaining authority on February 25, 1980,
it was rejected on March 13, 1980, a day after the Advisory Board had given its opinion. The Collector''s remarks which were sent for, were
available to the detaining authority as far back as on March 6, 1980 and there could be no reason for the detaining on the representation till the
receipt of the opinion of the Advisory Board. In a recent pronouncement in Abdul Salam v. Union of India the Supreme court has observed that by
virtue of provisions of the statute under which he has been detained, the appropriate government is legally obliged to comply with these
requirements. It is obligatory on the appropriate government to consider the detenu''s representation separate from other consideration of the
detenu''s case by Advisory Board. In Khudiram Das v. State of West Bengal AIR 19075 SC 550 the Supreme Court held that one of the basic
requirements of Clause 5 of Article 22 was that the authority making the order must offer the detenu the earliest opportunity of making a
representation against the order and this requirement will be ineffective unless there was corresponding obligation to consider the representation as
early as possible. In Rama Dhondu Borade Vs. V.K. Saraf, Commissioner of Police and Others, he Supreme Court observes as follows:
The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution. Correspondingly, there is a
constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the
detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the
same as expeditiously as possible. This Constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in
breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since
such a breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the constitution. True, there is
no prescribed period either under the provisions of the Constitution or under the concerned detention law i.e. National Security Act, within which
the representation should be delt with. The use of the words"" as soon as may be"" occurring in Article 22(5) of the Constitution reflects that the
representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without
avoidable delay, what is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in
that regard. However, in a case the gap between the receipt of the representation and its consideration by the Authority is so unreasonably long
and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention
In the same case the Supreme Court went on to add as hereunder:
Where the gap between the receipt and the disposal of the representation by the Central Govt. was 28 days but up to the date of service of the
order of rejection of the representation on the detenu the delay amounted to 32 days and the only explanation offered by the concerned Govt. was
that furter information required from the State Government was received by it after a delay of nearly 14 days and then within the period upto date
on which the representation of the detenu was disposed of there were certain holdings, there was an inordinate and unreasonable delay and the
explanation given was not satisfactory and acceptable and detention was invalid.
A Division Bench of this Court in S. Alagirisamy v. State W.P. No. 2814/84 held, that there was a two-fold right in favour of the detenu to
have his representation considered by the appropriate government and to have the representation once-again considered by the Government in the
light of the circumstances of the case considered by the Board for the purpose of giving its opinion and such consideration of the representation
shall be in dependent of each other and if the consideration of the report of the Advisory Board, it will be a clear case of non-compliance of Article
22(5) of the Constitution and the detention itself will be liable to be quashed on that ground. It was further held that the Government cannot allow
the representation to lie without being attended to, for it was expected to consider the representations with utmost expedition continuously. Any
slackness in this behalf, not properly explained would amount to a denial of protection conferred on the detenu under Article 22(5) of the
constitution of India and would result in invalidation of the order.
We are also aware that it will be difficult to hold that within a rigid time-framed representations will have to be disposed of. It will have to
depend on the facts and circumstances in each case. In MST L.M.S. Ummu Saleema v. B.B. Gujaral AIR SC 1101. It was observed that the time
imperative can never be absolute or obsessive. The occasional observations made by this Court that each day''s delay in dealing with the
representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that
it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there
are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae.
Again in Raisuddin alias Babu Tamchi Vs. State of Uttar Pradesh and Another, the Supreme Court observed in this context we consider it
necessary to emphasise that the question whether the representation submitted by a detenu has been dealt with due reasonable promptitude and
diligence is to be decided not by the application of any rigid or inflexible rule or a set formula nor by a mere arithmetical counting of dates, but by a
careful scrutiny of the facts and circumstances in each case, if on such examination, it is found that there was any remissness indifference or
avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the court will undoubtedly treat it as a
factor vitiating the continued detention of the detenu; or on the other hand, if the Court is satisfied that the delay was occasioned not by any lack or
diligence or promptness attention on the part of the authority concerned, but due to unavoidable circumstances or reasons entirely beyond his
control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued detention.
There will be no need to multiply decisions since principles governing these matters are well settled. We have set out the facts in detail which
clearly show that the Government had received the representations of all the detenus dated 1.8.1990 on 6.8.1990. We are not attaching serious
significance for the delay between 1.8.1990 and 6.8.1990 since 4.8.1990 and 5.8.1990 were holidays and though not pleaded delay in postal
transit may be the cause. Though the remarks were called for from the 3rd Respondent on 7.8.1990, he had dispatched his remarks only on
16.8.1990 to be received by the second Respondent on 20.8.1990. In paragraph 24 of his counter affidavit the third Respondent has stated that
the detenus had submitted their representations date 1.8.1990 only on 9.8.1990 to the Superintendent of Central Prison, Tiruchirapalli which on
being forwarded by the latter were received by him on 10.8.90. He had called for para war remarks from the sponsoring authority on 11.8.1990
which remarks were received on 16.8.1990. He then forwarded representation with para war remarks to the Government on 16.8.1990. The
records show that Thiru Jayaraj, Superintendent of Central Prison, Tiruchirapalli had forwarded the representations of the detenus dated 1st
August 1990 on the same day to the first and second Respondents. It may be that another copy of the representation was directly sent to the third
Respondent. The fact remains as affirmed by the affidavit of the 2nd Respondent that remarks were called for from the 3rd Respondent by the
second Respondent on 7.8.1990. Third Respondent has not given any details as to when he had received the communication from the second
Respondent and the action he had taken till 16.8.1990. Obviously there is no explanation for the delay that had occasioned for 9 days between
7.8.1990 and 16.8.1990.
It is admitted by the second Respondent that remarks were received from the 3rd Respondent on 20.8.1990 in respect of the second and third
Petitioners. The Minister for law and dealt with the file only on 11.9.1990. The file had been languishing in the racks of the Government for 22
days before a decision was taken to reject their representations on 11.9.1990. Even if we exclude the holidays which are five in number between
20.8.1990 and 11.9.1990, there is still a delay of 17 days. The movements of the file relating to these two Petitioners presents a sordid picture. A
note for circulating was submitted to the under Secretary on 30.8.1990. He dealt with the file on 31.8.1990. It went to the table of the Additional
Secretary, Public on 3.9.1990 and forwarded to the Additional Secretary law on 4.9.1990. The Secretary Law and order chose to dealt with the
file only on 8.9.1990 after a gap of four days. Thereafter it had to wait for a few more days before the Minister for law could deal with the said file.
We have to now recapitulate over-again the observation of the Supreme Court in Harish Pahwa Vs. State of U. P. and Others, as to why the
representations had to travel from table to table before reaching to law Minister, who was the only authority to decide the representation. As far as
the first Petitioner is concerned, though the case of all the Petitioners was identical and based on the same grounds, his representation was dealt
with by the Under Secretary on 29.8.1990 though submitted to him on 28.8.1990. The Additional Secretary Public and Additional Secretary, law
dealt with it on 30.8.1990. The Secretary Law and Order dealt with it on 31.8.1990 before the Law Minister dealt with it on 3.9.1990. There is
no explanation why between 20.8.1990 and 28.8.1990 no action was taken even if we exclude two holidays which intervened. Therefore we are
constrained to hold that the Government had not considered the representations of the detenus continuously and expeditiously and the mandate of
Article 22(5) of the Constitution of India had certainly been violated.
This is not all. The Government has received the opinion of the Advisory Board on 31.8.1990. The representation of the first Petitioner has
been rejected on 3.9.1990 while the representations of the other two Petitioners have been rejected on 11.9.1990. Thus there is a time interval of
3 days and 11 days respectively for the rejection of the representations of the Petitioners by the Government after the receipt of the opinion of the
Advisory Board. The Government had before it the remarks of the 3rd Respondent, the Collector even on 20.8.1990, 8 days prior to the
scheduled hearing before the Advisory Board. There is no reason why the Government should have waited for the opinion of the Advisory Board
before they chose to reject the representations of the Petitioners. It is not possible for us to accept that the Government had not allowed their mind
to be clouded by the opinion of the Advisory Board and thus had no occasion to consider the representations of the detenus independently. The
dates given by us plainly speak for themselves. The different dates considered together, lead to the irresistible inference that the detaining authority
had waited for the opinion of the Advisory Board. We have looked into the files and it is apparent that the files, be it with reference to the
Advisory Board or the representations of the detenus, had been dealt with by the same officers who were aware before the representations of the
detenus were rejected, that the Advisory board had already rejected their representations. This is a clear case of non-compliance of Article 22(5)
of the Constitution of India since consideration of the representations of the detenus had been deferred till the receipt of the reports of the Advisory
Board. Though there has been an unexplained delay by the first Respondent in the disposal of their representation for 8 days, we are not seriously
d welling into that question for even otherwise this writ petition deserves to be allowed.
There is yet another prayer in the writ petition for ordering a fair and reasonable amount of compensation to the Petitioners. Neither this ground
was argued nor any material placed before us justifying this prayer. This prayer shall stand rejected in limine.
The law enunciated by the Supreme Court, when applied to the facts of this case, would enure in favour of the detenus. We hold that neither
the representations of the detenus had been independently considered nor the Government had explained the long delay in the disposal of the
representations of the detenus. The impugned orders thus stand vitiated. We allow the Writ Petition; set aside the impugned orders of detention
and direct the Respondents to set the detenus at liberty forthwith provided they are not required in any other case.