Rajendran vs The Union of India and two others

K. Natarajan, J.—The question referred to the Full Bench by the division bench consisting of V.S.Sirpurkar and D.Murugesan, JJ reads as

follows:-

Whether, in the grounds in support of the detention orders passed u/s 3(2) of the National Security Act, if there is a failure on the part of the

authority to inform the detenu about his right to make a representation to the Advisory Board, is the detention order vitiated ?. In short, would such

failure breach the right of the detenu under Article 22(5) of the Constitution of India 7"".

As per the orders of My Lord, the Chief Justice, the full Bench has been constituted to decide the said question. One Rajendran, claiming to be

the friend of Saravanan alias Kumar alias Lakshmanan alias Methyan alias Babu and Jayaprakash alias J.P. alias Siva alias Karmuhll alias Arul alias

Ramesh alias Madhiyan alias Koolaiyan, has filed these two petitions praying that the order of detention passed against them by the District

Collector-cum-District Magistrate, Erode under the National Security Act is illegal and to direct the respondents to produce both the detenus

before this Court and set them at liberty.

The reference to the Full Bench has been made by the learned Judges of the division Bench in H.C.P.No. 1646 of 1999. Since the question of

law raised is the same, in the other H.C.P. namely, H.C.P.No.1681 of 1999, both the H.C.Ps. have been taken up together for consideration. It is

unnecessary to go into the details of the facts leading to the detention of both Saravanan and Jayaprakash. Suffice it to say that on the averments

made by the detenus, three contentions were raised by the learned counsel for the detenus, Mr.Sankarasubbu. The Division Bench has rejected the

first two contentions as without merit. The reference had been made only on the third contention, which is extracted below :-

Lastly, learned counsel says that the detenu is not specifically informed that he has a right to make a representation to the Advisory Board and that

amounts to denial of right of the detenu under Article 22(5) of the Constitution of India, thereby the detention is rendered illegal"".

To appreciate the third contention on which the reference has been made to the full Bench, it is necessary to extract the following in the detention

orders, which is common in respect of both the detenus, except the name of the individual:

Thiru Saravanan alias Kumar alias Lakshmanan alias Methayan alias Babu is informed that he has a right to make representation in writing against

the order under which he is kept in detention. If he wishes to make such a representation he should address it to the Chief Secretary to

Government, Public (Law and Order-F) Department, Secretariat, Chennai-9 and forward it through the Superintendent of the Prison in which he is

confined as expeditiously as possible. Any representation that is made by him will be placed before the Advisory Board for consideration of his

case u/s 10 of the National Security Act, 1980. He is also informed that he is entitled to be heard in person by the Advisory Board. He is

requested to intimate it to the Chief Secretary to Government, Public (Law and Order-F) Department, Secretarial, Chennai-9 specifically in writing

as expeditiously as possible whether he desires to be heard in person by the Board or not.

The learned counsel for the detenus submitted that in the detention orders, the detenu has been apprised of his right to make representation in

writing against the order under which he is kept in detention and if he wishes to make such representation, he should make the same to the Chief

Secretary to the Government, Chennai-9 and forward it through the Superintendent of Prison in which he is confined and any such representation

made by him will be placed before the Advisory Board for consideration of his case u/s 10 of the National Security Act, 1980 and, he was also

informed that he is entitled to be heard in person by the Advisory Board and he was requested to intimate it to the Chief Secretary, Chennai-9,

specifically in writing whether he desires to be heard in person by the Board or not. But it has not been specifically informed the detenu has got a

right to send his representation direct to the Advisory Board and such a right is mandatory and the detaining authority under law has an obligation

to inform me detenu of his right to make his representation direct to the Advisory Board and the non-fulfilment of the said obligation has affected

the constitutional rights of the detenu, which vitiates the order of detention and both the detenus are entitled to be set at liberty forthwith by being

produced before this Court. The learned Judges of the division Bench, after considering the submissions made by the learned counsel for the

detenus felt that the principle of law enunciated by the earlier division Benches of this Court in Selvaraj Vs. State of Tamil Nadu and Another, and

in Radhakrisknan v. The Commissioner of Police, Madras, H.C.P.No.1083 of 1996 decided on 28.7.1997 that it is not necessary that the detenu

should be informed of his right to make a representation to the Advisory Board, requires reconsideration, in view of the observations of the

Supreme Court of India in Kamleshkumar Ishwardas Patel v. Union of India, 1995 S.C.C. (Crl) 643. The observation on which reliance was

placed by the learned Judges of the Division Bench, in paragraph 14, is given below :-

Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention

which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the

order for continuance of such detention, which is competent to give immediate relief by revoking the said order as well as to any other authority

which is competent under law to revoke the order for detention and thereby give relief to the person, detained. The right to make a representation

carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a

representation against the order of detention to the authorities who are required to consider such a representation"".

The learned Judges of the division Bench are also of the view that the full Bench judgment of the Allahabad High Court in Raj Bahadur Yadav Vs.

The State of Uttar Pradesh and Others, also cannot be said to support the view expressed by the two earlier division Benches of this Court in the

matters of Selvaraj and Radhakrishnan mentioned above. However, the division Bench, after adverting to the arguments of the learned counsel for

both and the decisions cited, had observed in the middle of paragraph 12, that ""the question of making a representation to the Advisory Board has

not been considered at all either in Amir Shad Khan and another Vs. L. Hmingliana and others, or in Kamleshkumar'' s Case, . 1995 S.C.C. (Cri)

643.

The learned counsel for the detenus contended the Advisory Board would certainly be one of the authorities which is competent under law to

revoke the order of detention and thereby it can give relief to the person detained. Therefore, the non-mention of the fact that the detenu has a right

to make a representation to the Advisory Board direct, vitiates the order of detention, as according to him, the observation made by their

Lordships of the Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India, 1995 S.C.C. (Crl) 643 extracted above, makes it obligatory

on the part of the detaining authority to apprise such a right to the detenu. According to him, it is not sufficient to state in the detention order the

detenu has a right to make his representation in writing addressed to the Chief Secretary to Government, Chennai-9 and that any such

representation made by him to the Chief Secretary will be placed before the Advisory Board for consideration of his case and that he is entitled to

be heard in person by the Advisory Board. Apart from the above, the detenu ought to have been apprised that he has got a right to make his

representation to the Advisory Board also for consideration. It is urged by the learned counsel for the detenus the Advisory Board is an

independent body and is competent to give immediate relief to the detenu and if he had been apprised that he has a right to make a representation

to the Advisory Board, the detenu would have submitted his representation to the said body with different set of averments than submitted to the

Chief Secretary. According to the learned counsel, the choice is left with the detenu to make different sets of averment to be submitted to the Chief

Secretary and to the Advisory Board.

In the above circumstances, it has become necessary to ascertain the authorities which are competent under law to revoke the order of

detention and give immediate relief to the detenu, as representation has to be submitted to the authority which is competent to revoke the order of

detention. In support of the above contention, reliance is placed by the learned counsel for the detenus on a decision of the Supreme Court in Amir

Shad Khan and another Vs. L. Hmingliana and others, . In para 3, it has been observed as follows:-

The law of preventive detention is harsh to the person detained and, therefore, there can be no doubt that it must be strictly construed. Article

22(3)(b) denies to a person who is arrested or detained under any law providing for preventive detention the protection of clauses (1) and (2) of

the said article. Clause (4) thereof enjoins that the preventive detention law must conform to the limitations set out thereunder. Clause (5) of-

Article 22 reads as under:-

22 (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the

order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest

opportunity of making a representation against the order.

This clause casts a dual obligation on the Detaining Authority, namely, (i) to communicate to the detenu the grounds on which the detention order

has been made and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently the

failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly

violate the constitutional guarantee afforded to the detenu by clause (5) of Article 22 of the Constitution. It is by virtue of this right conferred on the

detenu that the Detaining Authority considers it a duty to inform the appellant-detenu of his right to make a representation to the State Government,

the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the constitutional

guarantee enshrined in Article 22(5) which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to

exercise that right, if he so desires. The necessity of casting a dual obligation on the authority making the detention order is obviously to acquaint

the detenu of what had weighed with the Detaining Authority for exercising the extraordinary powers of detention without trial conferred by Section

3(1) of the Act and to give the detenu an opportunity to point out any error in the exercise of that power so that the said authority gets an

opportunity to undo the harm done by it, if at all, by correcting the error at the earliest point of time. Once it is realised that Article 22(5) confers a

right of representation the next question is to whom must the representation be made. The grounds of detention clearly inform the detenu that he

can make a representation to the State Government, the Central Government as well as the Advisory Board"".

Per contra, the learned Public Prosecutor submitted that representations have to be made by a detenu in a case of preventive detention, only to

the authorities who are competent to revoke the order of detention, as pointed out in Kamleshkumar Ishwardas Patal v. Union of India, 1995

S.C.C. (Crl) 643. It is submitted jurisdiction of the Advisory Board is only to give an opinion after considering all the materials placed before it

including giving a hearing to the representations of the detenu in person, if he so desires and to revoke the order of detention if there is no sufficient

cause to continue the order of detention. He stressed that the Advisory Board is not a competent body to order revocation of the detention, and

on the other hand, its jurisdiction is only advisory. In a case where the Advisory Board gives an opinion that the order of detention has to be

revoked, the Central Government or the State Government, as the case may be, has no option except to revoke the order of detention. But, if the

Advisory Board gives an opinion that the order of detention has to be continued, the Central Government or the State Government, as the case

may be, can either continue the detention or after an Independent consideration of the representations made by the detenu, can revoke the order of

detention. In short, the learned Public Prosecutor impressed that the hand that gives the relief, namely, revoke an order of detention, is only the

State (Government or the Central Government, as the case may be, and the Advisory Board has no jurisdiction to hand down an order of release

and, therefore, it is not obligatory on the part of the detaining authority to apprise the detenu that he has got a right to make the representation to

the Advisory Board direct. After the Advisory Board renders its opinion, a further order has to be passed by the State Government or the Central

Government, as the case may be, to revoke the order of detention and the Advisory Board had no authority to revoke the order of detention

direct. In our opinion, the above submission has substantial merit and we accept the same. Our view is strengthened by the observations made by

the Supreme Court of India in the same decision, namely, Amir Shad Khan and another Vs. L. Hmingliana and others, , which arose in a case of

detention under the COFEPOSA Act. In the middle Of paragraph 3, it has been held:-

There can be no doubt that the representation must be made to the authority which has the power to rescind or revoke the decision, if need be.

Our search for the authority must, therefore, take us to the statute since the answer cannot be found from Article 22(5) of the Constitution read in

isolation. As pointed out earlier that clause casts an obligation on the authority making the detention order to afford to the detenu an earliest

opportunity to make a representation against the detention order. If we are to go by the statement in the grounds of detention our search for that

authority would end since the grounds of detention themselves state the authorities to which the representation must be made. The question must be

answered in the context of the relevant provisions of the law. Now as staled earlier by clause (5) of Article 22, a dual obligation is cast on the

authority making the detention order one of which is to afford to the detenu an earliest opportunity of making a representation against the order

which obligation has been met by informing the detenu in the grounds of detention to whom his representation should be addressed. But the

authority to which the representation is addressed must have statutory backing. In order to trace the source for the statutory backing it would be

advantageous to notice the scheme of the Act providing for preventive detention. Section 2(b) defines a detention order to mean an order made u/s

3, Sub-section (1) of Section 3 empowers the Central Government or the State Government or any officer of the Central Government not below

the rank of a Joint Secretary to that government, specially empowered for the purposes of this section by that government, or any officer of a State

Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, to

make an order of detention with respect to any person with a view to preventing him from acting in any manner prejudicial to the conservation or

augmentation of foreign exchange or with a view to preventing him from doing any one of the five prejudicial acts enumerated thereunder. Sub-

section (2) of that section provides that when any order of detention is made by a Stale Government or by an officer empowered by a State

Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. It is evident from

this provision that whenever a detention order is made by the State Government or its officer specially empowered for that purpose an obligation is

cast on the State Government to forward a report to the Central Government in respect of that order within ten days. The purpose of this provision

is clearly to enable the Central Government to keep an eye on the exercise of power u/s 3(1) by the State Government or its officer"".

At the end of paragraph 3, at pages 48 and 49, the learned Judges of the Supreme Court, after making a reference to Section 11 of the

COFEPOSA Act dealing with the authorities who are competent to revoke the detention order, had held :-

Thus on a conjoint reading of Section 21 of the General Clauses Act and Section 11 of the Act it becomes clear that the power of revocation can

be exercised by three authorities, namely, the officer of the State Government or the Central Government, the State Government as well as the

Central Government. The power of revocation conferred by Section 8(f) on the appropriate Government is clearly independent of this power. It is

thus dear that Section 8(f) of the Act satisfies the requirement of Article 22(4) whereas Section 11 of the Act satisfies the requirement of the latter

part of Article 22(5) of the Constitution. The statutory provisions, therefore, when read in the context of the relevant clauses of Article 22, make it

clear that they are intended to satisfy the constitutional requirements and provide for enforcement of the right conferred on the detenu to represent

against his detention order...."".

The learned Public Prosecutor submitted from the above, it is clear the Advisory Board is not the competent authority to revoke the order of

detention except giving its opinion or the advice as the case may be, and, therefore, it is not obligatory on the part of the detaining authority to

apprise the detenu that he has got a right to make his representation to the Advisory Board, It is unnecessary to make a detailed reference to the

other decisions, namely, (1) Meena Jayendra Thakur v. Union of India & others, 1999 (8) Supreme 284; (2) N.Narayanan v. The Commissioner

of Police, Coimbatore City & others, 1999 (1) L.W. (Crl) 194; (3) Akhilesh Kumar Tyagi Vs. Union of India and Others, ; (4) Keshav Babu

Shivhare v. District Jail, Hamirpur, 1996 All.L.J. 1231; (5) State of Punjab Vs. Sukhpal Singh, (6) A.R. Antulay Vs. R.S. Nayak and Another, ;

(7) A.K.Roy v. Union of India, 1982 SCC (Crl) 152; and (8) Jayanarayan Sukul Vs. State of West Bengal, , cited by the learned counsel for the

detenus, as the subsequent decisions only re-state the principles of law laid down by the Supreme Court in Amir Shad Khan and another Vs. L.

Hmingliana and others, ,

At this juncture, it is relevant to refer Section 14 of the National Security Act, 1980, which reads as follows:-

14, Revocation of detention orders:- (1) without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, (10 of 1897) a

detention order may, at any time, be revoked or modified-

(a) notwithstanding that the older has been made by an officer mentioned in sub-section (3) of Section 3, by the State Government to which that

officer is subordinate or by the Central Government;

(b) notwithstanding that the order has been made by a State Government, or by the Central Government;

(2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order u/s 3 against the same person in any case

where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer

mentioned in sub-section (3) of Section 3, as the case may be, is satisfied that such an order should be made"".

It is noticed that the Advisory Board is not mentioned as one of the authorities competent to revoke the order of detention in Section 14. The

authorities who were competent to revoke the order of detention u/s 14 of the National Security Act are:- (1) the Officer by whom the detention

order has been made and who is subordinate to the State Government or the Central Government; and (2) by Central Government notwithstanding

that the order has been made by the State Government.

The Supreme Court had occasion to consider a similar contention in Wasiuddin Ahmed Vs. District Magistrate, Aligarh, U.P. and Others, ,

relied on by the learned Public Prosecutor, where it has been held in para 18 as follows;-

It is unfortunate that there was a failure to mention in the grounds of detention, that the detenue had the right to make a representation against the

order of detention as envisaged by Art, 22 (5) of the Constitution read with S. 8 of the Act, and also the right of being heard before the Advisory

Board while he was served with the order of detention. It is expected of a detaining authority while serving an order of detention, as a rule, to

mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard

by the Advisory Board. In the Present case, the grounds of detention served upon the detenu do not contain any such recital. It, however, appears

that the detenu was furnished a copy of the Constitution on March 25, 1981 at the Central Jail, Fatehgarh presumably at his own request, for the

purpose of making a representation against the order of detention. The words ""and shall afford"" in Art. 22(5) have a positive content in matters of

personal liberty. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards,

particularly in cases of deprivation of life and liberty is of prime importance to the body politic. It is, therefore, imperative that the detention

authority must ""apprise"" a detenu of his constitutional right under Art. 22(5) to make a representation against the order of detention and of his right

to be heard before the Advisory Board. The right of the detenu to make a representation under Art, 22 (5) would be, in many cases, of little avail if

the detenu is not ""informed"" of this right. The failure to comply with this requirement, however, does not have the effect of vitiating the impugned

order of detention or render the continued detention of the detenu illegal in this case for the reason that the detenu is an enlightened person and has

been in active politics and was, therefore, fully cognisant of his right to make a representation under Article 22(5) of the Constitution and u/s 8 of

the Act. In fact, the detenu appeared before the Advisory Board and filed a representation against the order of detention and was also personally

heard by the Advisory Board"".

From a close reading of the principles of law laid down by the Supreme Court of India, it is clear that the detenu shall be apprised by the detaining

authority of his right to make representation to the State Government or the Central Government, as the case may be, and also about his right to be

heard in person by the Advisory Board, if he so desires. The detenu has no right to insist that he should be apprised by the detaining authority he

has a right to make a representation to the Advisory Board also. On the other hand, he should be apprised only that he has a right to make

representation before the Advisory Board and nothing further. We are satisfied the principles of law laid down in the above decision of the

Supreme Court directly applies to the facts of the present cases.

In the cases on hand, admittedly, the detenus were produced before the Advisory Board and they made their representation and after

consideration the same, the Advisory Board felt there is sufficient cause to continue the order of detention and there is no reason to revoke them.

Nothing prevented the detenus from submitting their representation in writing before the Advisory Board when they were produced before it which

had been done. The submission made by the learned counsel for the detenus that at the time they were produced before the Advisory Board, they

were not prepared and since they required the assistance of their friend to prepare the written representation, they were unable to do it, in our

view, seems unacceptable. Even assuming it to be so, nothing prevented the detenus from making representation before the Advisory Board that

they may be given more reasonable time to prepare their written statement with the assistance of their friend and submit the same, which course

was also not resorted to by the detenus. In orders of detention it is clearly stated that the detenus have a right to be had in person by the Advisory

Board which, in our opinion, is sufficient compliance of the obligation under Article 22(5) of the Constitution of India. Therefore, we find no merit

in the submission of learned counsel for the detenus and hold that the Division Bench of this Court in Selvaraj Vs. State of Tamil Nadu and

Another, and Radhakrishnan v. The commissioner of Police, Madras H.C.P.No.1083 of 1996 decided on 23.7.1997, require no reconsideration.

For the reasons aforestated, we are clearly of the view that the detenus have no right to insist they should have been apprised that they have

got a right to make their representation to the Advisory Board direct and the contentions raised in this behalf are wholly unsustainable in law,

In the result, we answer the reference in the negative and find that no infraction has been committed by the detaining authority under Article

22(5) of the Constitution of India.

As already pointed out that the contentions raised by the detenu have already been rejected by the learned Judges of the division bench and

the only contention remains to be decided is contention No.3, which is a legal point on which only, the reference has been made by the division

Bench, As we have answered the reference in the negative, we fell it unnecessary to send back the matters to the Division Bench for disposal and

the same can be disposed of by this Fall Bench itself. For the foregoing reasons, we find there is no merit in the two H.C.Ps. and both the H.C.Ps.

are liable to be dismissed. Accordingly, H.C.P.Nos.1646 of 1999 and 1681 of 1999 are dismissed.