T. Meenakshi vs Government of Tamil Nadu and Others

Arunachalam, J.—Both these writ petitions are disposed of together since the respective detenus are stated to be involved in the same

incident and the contentions are identical.

The petitioner is the same in both the writ petitions. In W.P.12321 of 1991, the prayer is for the issue of a habeas for the production of the

detenu Yogarathinam alias Dharmabalan, her husband to be set at liberty, after quashing the order of detention made against him, by the second

respondent, on 29.7.1991, in exercise of the powers conferred u/s 3 (3) of the National Security Act, 1980 (Central Act 65 of 1980). In

W.P.12568 of 1991, the prayer is the same, though the detenu is Durairathinam, her husband''s brother. The Orders of detention bear the same

date, and the purpose for which both the detenus have been detained is also the same.

The detailed facts which led to the passing of the impugned orders of detention need not have to be stated, since purely on the ground of

unexplained delay in disposal of the representations of the detenus, these writ petitions deserve being allowed.

Mr. B. Kumar, learned counsel representing the detenus, submitted that the only representation against the detention was made before the

Advisory Board on 6.9.1991. The Advisory Board forwarded the representations of the detenus to the State Government, which received them

on 11.9.1991. On the same day, the State Government chose to call for remarks from the Sponsoring Authority. The Sponsoring Authority

forwarded parawise remarks, which were received by the Government on 10.10.1991 in W.P.12321 of 1991 and on 9.10.1991 in W.P. No.

12568 of 1991. Thereafter, the representations were disposed of on 16.10.1991. Meanwhile, the orders of detention were confirmed by the State

Government on 18.9.1991. The long delay in the disposal of representations had not been explained. This ground has been taken in paragraph 14

of the affidavits filed in support of the prayers in both the writ petitions. It reads as follows:

On behalf of the detenu a representation was sent to the respondents and the respondents are bound to satisfy this Honourable Court that the said

representation had been considered in accordance with the mandate of the Constitution and disposed of without any delay, and further documents

and clarifications sought for were also answered in a manner mandated by the Constitution.

Mr. B. Sriramulu, learned Public Prosecutor, fairly stated that the substantial delay in forwarding the remarks, by the Sponsoring Authority, had

not even been sought to be explained.

While meeting this ground, the first respondent has stated as follows:

The averments made in paragraph 14 of the affidavit are denied. It is submitted that representation of Thirumathi Meenakshi presented on behalf of

the detenu before the Advisory Board on 6.9.91 was received by the Government on 11.9.91. The parawar remarks were called for from the

Collector, Thanjavur on 11.9.91. The parawar remarks were received by this respondent on 9.10.91. the representation of the detenu was

examined in detail and the file was submitted with a note for circulation on 10.10.91. The Under Secretary (Culture), the Joint Secretary, Public

and the Secretary, Public dealt with the file on 11.10.91. 12.10.91 and 13.10.91 were holidays. The Secretary (Law) dealt with the file on

14.10.91. The Minister (Law dealt with the file on 15.10.91. The decision of the Government was communicated in Government Letter No.

3227/91-6 Public (Law & Order-D) Department, dated 15.10.91, which was acknowledged by the detenu on 16.10.91. Hence, there is no delay

in considering the representation of the detenu.

The Sponsoring Authority, who is the second respondent, has stated in paragraph 13 of his counter affidavit, as follows:

As regards the averment made in paragraph 14 of the Affidavit, I submit that no representation was received directly from the writ petitioner or the

detenu.

8.The Sponsoring Authority, who had received communication from the State Government to offer parawise remarks, had not offered any

explanation for the long delay between 11-9-1991 and 10-10-1991. Even an attempt had not been made to explain the delay. It is settled law that

representation of the detenu will have to be considered continuously and expeditiously, and unexplained and inordinate delay would vitiate the

order of detention. In these cases also, the delay has not been sought to be explained.

In a recent pronouncement, in Mahesh Kumar Chauhan alias Banti v. Union of India and others AIR 1990 Supreme Court page 1455, the

Supreme Court observed as follows:

In spite of the weighty pronouncements, of this Court making the legal position clear, it is still disquieting to note that on many occasions the

appropriate authorities cause considerable delay in considering and disposing of representations and also exhibit culpable indifference in explaining

such delay. We feel that in case the appropriate authority is unable to explain personally the delay that various stages, then it will be desirable-

indeed appropriate-for the concerned authority or authorities at whose hands the delay has occurred to individually explain such delay.

The next question is should or can the Court in the absence of any explanation wink or skip over or ignore such an infringement of the constitutional

mandate and uphold an order of detention merely on the ground that the enormity of allegations made in the grounds of detention is of very serious

nature as in the present case? Our answer would be ''Not at all�.

In this connection, it will be relevant to make reference to the view expressed by Mathew, J. speaking for the majority in Prabhu Dayal Deorah Vs.

The District Magistrate, Kamrup and Others, which is as follows:

(at p. 199 of AIR)

We say and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti social activities can never furnish an

adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the law.

The history of personal liberty is largely the history of insistence on observance of procedure. An observance of procedure has been the bastion

against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he

shall not be depreived of it except in accordance with the procedure established by law.

Reverting to the facts of the present case as submitted by the learned counsel, except mentioning that the representation was forwarded to the

concerned sponsoring authority on 25.8.1989 and the comments from the sponsoring authority was received by the Department on 11.9.1989,

there is absolutely no explanation as to why such a delay had occurred. Therefore, in the light of the proposition Laid down in Rama Dhondu

Borade Vs. V.K. Saraf, Commissioner of Police and Others, we have no other option except to allow this appeal on the ground that this undue

and unexplained delay is in violation of the constitutional obligation enshrined in Article 22 (5) of the Constitution of India rendering the impugned

order invalid.

(Paragraphs 17 to 20)

Applying the law laid down by the Supreme Court, these writ petitions will have to be and are accordingly allowed, on the short ground raised.

The impugned orders of the detention are quashed and the detenus are directed to be set at liberty forthwith, unless their detention is required for

some other cause.