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Judgment
N.I. Singh, J.—By an order, dated December 10, 1982, we directed the release of the detenu, Shri Rajen Medhi, whose detention under the National Security Act, 1980, was challenged in this writ petition. We now proceed to state our reasons.
The detenu was arrested on October 17, 1982, in pursuance of the order dated October 8,1982 made by the Governor of Assam u/s 3(2) of the Act. The order of detention as well as the grounds of detention were served on him on the same day in due course, the detenu made representation to the State Government through the Superintendent of District Jail Gauhati. His representation was rejected. The Advisory Board constituted under the Act reported that there was, in its opinion, sufficient cause for his distention. The State Government acting on the report confirmed the detention order. Before consideration of his case by the Advisory Board, the detenu filed this application to this Court on November 9, 1982, praying for a writ in the nature of habeas corpus under Article 226 of the Constitution of India. Rule Nisi was issued on November 9, 1982, to the Respondents returnable within three weeks. On confirmation of the detention order on the report of the Advisory Board the detenu filed supplementary affidavit contending, that the Advisory Board denied legal assistance, to him through a friend having legal knowledge, when demanded in the course of hearing before the Board.
The order of detention was challenged by the detenu on various grounds but counsel for the detenu at the time of hearing canvassed only two questions (1) the grounds of detention are vague and unintelligible, and (2) the Advisory Board denied a ''friendly'' representation in the course of hearing before the Advisory Board.
Before dealing with the questions raised in this case, it will be convenient at this stage to refer to the grounds of detention which are reproduced below:
(Annexure-I). Government of Assam. Political (A) Department No. PLA. 1419/82/10 Dated, Dispur, the 8th Octr. 82. ORDER BY THE GOVERNOR OF ASSAM.
WHEREAS Government of Assam are satisfied with respect of the person known as Shri Rajen Ch. Medhi, son of Shri Joyram Medhi that with a view to preventing him from acting in a manner prejudicial to maintenance of public order it is necessary to detain him under the National Security Act, 1980 and to make the following order.
Now, therefore, in exercise of the powers conferred by Sub-section (2) of Section 3 of the National Security Act, 1980 the Government or Assam direct that the said Shri
Rajen Ch. Medhi, son of Shri Joyram Medhi be detained in the District Jail, Gauhati.
By order etc. Sd/- illegible, Commissioner and Secretary to the Govt. of Assam, Political (A) Department
''Grounds of detention in respect of Shri Rajen Medhi son of Shri Joyram Medhi of Village Saukuchi, P.S. Dispur (Annexure 11).
You as a member of the All Assam Students Union (ASSU) of Betkuchi Unit and an Ex-Joint Secretary of Gana Sangram Parishad (GSP) Betkuchi unit are a staunch supporter of the current agitation launched by ASSU/AAGSP on the foreigner�s issue. You associated yourself with a group of like minded extremists consisting of Nimesh Saikia of Basistha, Bipul alias Lalu of Jatia, Mukum Bora of Basistha Srimanta Nagmani, Achinta Barman of Dispur an Subhas Das of Gauhati. You along with the members of your group have clandestine contact "from time to time" with Hiten Goswami convenor of North East Region Student Union (NERSU) Prof. Kamini Nath and one Amiya Bhattacharjee of Oakland, Shillong for procuring Arms and Explosives for your terroristic design to cause panic amongst those opposed to the current agitation on foreigner�s issue. You with the members of your group have been using a secret place near Basjstha as your rendezvous where you discussed to eliminate political high ups and Govt. officials, opposed to the agitation On 6.3.82 you along with one of your associate ''Bhaity'' caused an explosion at the house of Smti. Parul Bora, a Congress (I) worker at Bhangagarh. You along with the members of your group assembled in a secret meeting on 26.6.82 and decided to foil the holding of the Congress (I) raliy on 29.6.82 at Judges field, Gauhati by blowing up the rostrum. But the same decision did not materialise because of tight security arrangements and you and your group threw a grenade at the Congress (I) office at Rajgarh on 3.7.82 at about 11.30 A.M. which did not explide. The explosion if, it had occurred, could have caused loss of human life and damage to property.
The above stated activities of yours are clearly prejudicial to the maintenance of public order.
You may represent before Government against the order of detention.
Sd/- illegible, Commissioner and Secretary, to the Govt. of Assam, Political (A) Department.
Counsel for the detenu strenuously contended that the grounds furnished to the detenu, Annexure II, are vague unnitelligible. It was urged that the grounds communicated to the detenu must reveal the whole of factual grounds considered by the detaining authority, not merely inferences of facts arrived at by the detaining authority. Grounds mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention. It was also urged one of the grounds suffered from vagueness by not (sic) basic facts and materials, as distinguished from factual (sic) the detention order is illegal, and the detenu is entitled to released. In support of the contention a number decide of Supreme Court was cited, viz., (i) The The State of Bombay Vs. Atma Ram Sridhar Vaidya, (ii) Vakil Singh Vs. The State of J. and K. and Another, (iii) Khudiram Das Vs. The State of West Bengal and Others, (iv) Mohd. Yousuf Rather Vs. State of Jammu and Kashmir and Others, and State of Jammu and Kashmir Vs. Hazara Singh and Another, Some decisions of this Court were also cited, viz., (i) (sic) Bora v. Union of India, 1980 Cri. L.J. 201 , (ii) Bhupen Deka Vs. State of Assam, and the common judgment dated 11.2.81, in Civil Rules 46 (HC), 50 (HC), 51 (HC) and 53 (HC) of 1981.
Counsel for the detenu submitted that the allegations in the grounds, which were clubbed together in one para-(sic) are extremely vague. Only the, first sentence in the grounds, Annexure II, can be described to be preamble, and the rest of circumstances constituted separate grounds of detention. The second (sic) does not mention as to when and where the detenu raised himself with the group of like minded extremists names are mentioned therein. The third sentence does also specify the period during which, and places where, detenu along with the Members of his group, made clandes(sic)contact from time to time, with Hiten Goswami, convenor (sic) and two others for procuring Arms and Explosive, their terroristic design to cause panic amongst those opposed the current agitation on foreigners issue. The fourth sentence (sic)does not specify the period. It does not mention even (sic) who were the political high ups and Government officer whose elimination, the detenu and members of his discussed. Counsel, however, has not attacked seriously (sic) three sentences on ground of vagueness.
Counsel for the State, on the other hand, centended (sic) was only ground on which the detaining authority of its subjective satisfaction for passing the order of (sic) The sentences in one paragraph, Annexure II, are to facts as a whole. The first sentence of the ground is only (sic). It discloses the identity of the detenu and thereafter, the various activities of the detenu are narrated in chronological order, it was submitted that the third sentence is the core of the ground and this sentence is to be read along with the remaining sentences. The various activities described in the grounds are prejudicial to the maintenance of public order. If was further submitted that the grounds does; not suffer from tie'' vice of vagueness. All the basic facts and materials as required under the law were furnished to the detenu for an effective representation. Two decisions of Supreme Court were cited, (i) Dhananjoy Das Vs. District Magistrate, Darrang and Another, and (ii) Bidya Deb Barma Etc. Vs. District Magistrate, Tripura, Agartala,
The law is now sell-settled that a detenu has two rights under Article 22(5) of the Constitution; (1) to informed, as soon as may be, of the grounds on which the order of detention is based, that is, the ground which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particular to enable him to make a representation which is on being considered may obtain relief to him. The inclusion of an irrelevant or non-existent-ground among other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the constitutions rights of the detenu entitling him to approach the Court for relief. The reason for saying that the inclusion of even a single irrelevant or obscure ground among several relevant and clear grounds is an invasion of the detenu''s constitutional right is that the Court is precluded from adjudicating upon the sufficiency of the grounds and it cannot substitute its objection decision for the subjective satisfaction of the detaining authority [See Mohd. Yousuf Rather (supra) and Smt. Shalini Soni and Ors. (supra)].
In Smt. Shalini Soni and Ors. (Supra), the Supreme Court after referring to its earlier decisions in Ganga Ramchand Bharvani Vs. Under-Secretary to The Government of Maharashtra and Others, and Vakil Singh Vs. The State of J. and K. and Another, pointed out the two is contained in Article 22(5) of the constitution that whatever angle from which the question is looked is clear that grounds in Article 22(5) do not mean the factual inferences but factual inferences plus factual (sic) which led to such factual inferences. If the detenu to be so informed the opportunity so solemnly guaranteed the Constitution becomes reduced to an exercise in futility. It was further observed that the ''grounds'' must be ''self-sufficient'' and ''self-explanatory''.
We also keep in view the principle laid down by the Supreme Court in catena of cases that the question whether particular ground is vague depends on the facts and circumstances of each case, because vagueness is a relative term. What is to be vague in one case may not be so in similar circumstances the other case. If the basic facts which constitute the grounds of detention be not furnished to enable the detenu to make an effective representation, the order of detention will be vitiated.
Before we proceed to consider the first question raised the learned Counsel for the detenu, we would like to deal with the two cases relied on by the learned Counsel for the State.
In Dhananjoy Das (supra) there were only two grounds (sic) in paras 2 and 3 of the grounds of detention. The paragraph was held to be only introductory paragraph. In first paragraph only indicated that the three organisations(sic) therein had been taking part in the current agitation (sic)signers issue in the manner stipulated thereat. Paragraphs 2 and 3 of the grounds dealt with specific parts attributed to detenu on specific days and at specific places. On a careful edition of paragraphs 2 and 3 of the grounds of detenu was held that the basic facts had been given to enable detenu to make an effective representation.
In Bidya Deb Barma (supra), the Supreme Court the contention that the grounds suffered from the vice vagueness. After stating generally what the activities were grounds then specified the places where and the dates on the meetings were held and dates on which and, places, which resistance took place. Sub-para of para 2 of the grounds specified the places where and the dates on which the (sic) were held and the resistance took place, opened with expression. "The above reports are evident from the facts". Sub-para then gave specific dates on which and places at which those activities were committed. Sub-para and paras 1 and 2 were so interwoven that there was no escape from the conclusion that all the basic facts as required by law were furnished to the detenu. It was in that context that the grounds were held not to have suffered from the vice of vagueness and no more detailed information was necessary to give the detenu opportunity to make their representations. But such is not the case before us.
We now proceed to consider as to whether Annexure II above contained only one ground as contended by the learned Counsel for the State. We are unable to accept this contention of the learned Counsel for the State. Annexure II speaks grounds of detention in respect of Shri Rajen Medhi, the detenu. The concluding sentence in Annexure II if "The above stated activities of yours are clearly prejudicial to the maintenance of public orders" reinforces our view that they formed several grounds on which this detaining authority had its subject satisfaction for passing the order of detention. The entire allegations when read as a whole leave no room for doubt that they constituted various grounds and not one ground. In counter-affidavit filed by the Deputy Secretary to the Govt. Assam, Home and Political Department, on behalf of the Respondents, no such stand was taken that the activities constituted only one ground. Paragraphs 3, 4, 5, 6 and 7 of the counter-affidavit speak of grounds of detention'' and not ''ground of detention''. The counter-affidavit thus has belled the contention above.
The Supreme Court in Dhananjoy Das (supra) held that there is no bar to have introductory paragraph in the grow Whether a particular paragraph in the grounds amounts only to a preamble or introductions is to be determined on the facts and circumstances of each case, and it is open to the Court to make its own conclusion whether that paragraph is only an introductory para or contains the grounds on the basis of which the detaining authority had subjective satisfaction for passing the order of detention.
We have meticulously examined the grounds in Annexure II. In our view, the first two sentences are only preamble, on introduction to describe the identity of the detenu. But, of the succeeding sentences, 3rd, 4th, 5th, 6th and 7th, which described separate activity of the detenu, constituted distinct and separate ground of detention. Each of them dealt with the specific activity attributed to the detenu, which was considered prejudicial to the interest of maintenance of public order. In the activities mentioned in the 5th, 6th and 7th sentences, each of which formed separate ground, specific dates and places were mentioned. But in the first ground in which the activity of the detenu was described, it does not mention the period during which, and the places where, the clandestine contact was made from time to time. It is not disputed by the counsel of both the parties that the current agitation has been going on several years since August, 1979. The detenu, according to affidavit, is a student of first, year pre-University Course of Arya Vidyapeeth College, Gauhati, and is aged about 19 years. As the clandestine contact was made ''from time to time'' with the persons named therein, the period during which such clandestine contact was made is a basic fact, which is required to be furnished to the detenu to enable him to make an effective representation as enshrined in Article 22(5) of the Constitution. It is also a basic fact to mention place or places where the clandestine Contact, whether in Assam or in any other part of India, was made. The first ground, in our view, suffered from the vice of vagueness. Similarly, the second ground in the 4th sentence, which dealt with another separate activity had not given date or dates on which the activity attributed to the detenu, was committed. It was not mentioned even by implication the organizations to which the political high-ups opposed to the agitation belonged. In our view, there are no words showing any of the activities described in the 5th, 6th or 7th sentence as consequential flowing from the activity mentioned either in the 3rd or 4th sentence as in the case of Bidya Deb Banma (supra). We hold, therefore, that both the grounds are vague.
Vagueness of grounds is an invasion of the second of the rights guaranteed under Article 22(5) of the Constitution. The contention of the learned Counsel for the Petitioner on the first question is accepted. The detenu is entitled to be released forthwith on this ground. It seems to us that the grounds in the 5th, 6th and 7th sentence, were not vague or indifferent or lacking in particulars for the making of an effective representation.
On the second question, learned Counsel for the Petitioner refefred to a copy of the representation addressed to Statu Government, Annexure III, wherein the asked for representation by a friend. The document is of no assistance to the Petitioner, Such a demand was to be made before the Advisory Board. The detenu in his supplementary affidavit however averred that such a demand was made before the Advisory Board and the Board rejected it. The Government, in its counter-affidavit has not controverted it, since, counsel for the State submitted, it was not within the knowledge of the Government, whether such a demand was made before the Advisory Board and rejected. The file containing the proceedings of the Advisory Board was not produced before us. Learned Counsel for the State produced the containing the report communicated by the Advisory Board to the State Government. We have perused the report, and we do not find the slightest hint of a demand for ''friendly'' representation or its denial anywhere.
As regards the facility for a ''friendly'' representation before the Advisory Board, the Constitution Bench in A.K. Roy and Others Vs. Union of India (UOI) and Others, made the following observations (page 747, para 95)
Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by the friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious inport, is entitled to be heard in those proceedings and be assisted by a friend. A detenu, taken straight from his cell to the Board''s room, may lack the case and composure to present his point of view. He may be "tongue-tied, nervous, confused or wanting in intelligence", (see Pen v. Ground Racing Association Ltd. (1969) 1 QB 125), and if justice is to be done, be must at least have the, help of a friend who can assist him to give coherence to his stray and wandering ideas. Incarceration makes a man and his thoughts dishevelled. Just as a person who is dumb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is not denial of natural justice per se, and therefore, if a statue excludes that faciliry expressly, it would not be open to the Tribunal to allow it. Fairness, as said by Lord Denning M.R. in Maynard v. Osmond (1977) 1 Q.B. 240, 253, can be obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whether demanded, the Advisory Boards must grant that facility.
We however reject the contention of the learned Counsel for the Petitioner on the second question on two grounds: (i) the Advisory Board whose action is complained of is not a party before us, and (ii) our decision on the point would be merely academic. It would be academic because after rejection of the request, if any, the Board reviewed the case of the detenu and gave its opinion whereupon the Government confirmed the detention see Smt. Henilata Kantilal Shah v. State of Maharashtra and Anr. 1982 SCC (Cri.) 16.
For the reasons stated above, and in view of our finding the first question in favour of the, detenu, the order of detention is quashed and we direct that the detenu be set at party forthwith.