ANKIT ASHOK JALAN Versus UNION OF IDNIA AND ORS. WRIT PETITION (CRIMINAL) NO.362 OF 2019.
“Once the detention order has been made by any of the authorities competent to detain in terms of Section 3 (1) of the COFEPOSA Act, the representation to seek revocation of the detention order can be considered and decided by the Detaining Authority dehors the decision of the Advisory Board and the acceptance of recommendation by the appropriate Government.”
The learned Counsel for the petitioner accepted that by the time representation dated 17.07.2019 was received by the Detaining Authority, the matter was referred to the Central Advisory Board and since the 5 (2015) 16 SCC 177 6 (1991) 1 SCC 476 Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan vs. Union of India & Ors. 8 Detention Orders were set aside by the High Court on 02.08.2019, the non-consideration of the representation till 02.08.2019, in the facts of the instant case, would not be of any significance. However, in their submission, after the decision of the High Court was set aside by this Court and the detenues were taken back in custody in November, 2019, the non-consideration of and delay in disposal of said representation was more pronounced and relevant. It was submitted:- (a) A representation against an order of detention can be made to the Detaining Authority where the detention order has been passed by a specially empowered officer of the Central Government as well as to the Central Government and the Central Advisory Board. Para 12 of the grounds of detention, as extracted earlier, was in keeping with this well accepted principle. (b) The representation made to the Detaining Authority had to be considered by the Detaining Authority independently. The Detaining Authority was not right in waiting till the receipt of the report of the Central Advisory Board. (c) The consequential delay on part of the Detaining Authority in considering the representation thus violated the constitutional rights of the detenues. Writ Petition (Criminal) No.362 of 2019 Ankit Ashok Jalan vs. Union of India & Ors.
On the other hand, Mr. K.M. Nataraj, learned Additional Solicitor General, for the respondents relied upon the decisions of this Court in Golam Biswas and in K.M. Abdulla Kunhi6 to submit that while the matter was pending consideration before the Central Advisory Board, the representation in question could not be considered and it could be considered only after the receipt of the report of the Central Advisory Board.
Based on the contentions the court pointed of the following:
the Government i.e. the Detaining Authority considers the representation without delay and without an unbiased mind, there is no basis for concluding that there has been an absence of independent consideration, before the confirmation of detention. The Court held that there is no justification for imposing the restriction on the power of the Detaining Authority. It was held as under: 10 “19. There is no constitutional mandate under Clause (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this restriction on the power of the Government. As observed earlier, the Government’s consideration of the representation is for a different purpose, namely to find out whether the detention is in conformity with the power under the statute. This has been explained in Haradhan Saha case, where Ray, C.J., speaking for the Constitution Bench observed that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing such representation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government.”.
The Constitution Bench of this Court in K.M. Abdulla Kunhi further examined the situation that if the detenu makes a representation after his detention is confirmed according to the procedure laid down under Section 8 of the COFEPOSA Act, the Government still has to consider such representation and assess whether the detention is not within the power conferred under the law. The Court held as under: “The words ‘shall afford him the earliest opportunity of making a representation against the order’ in clause (5) of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under Section 8 of the Act. But if the detenu does not 11 exercise his right to make representation at that stage, but presents it to the government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statute. The confirmation of the order of detention is not conclusive as against the detenu. It can be revoked suo motu under Section 11 or upon a representation of the detenu.
The aforesaid judgment arises out of the fact that the detention order was passed by the Government, however, it will not make any difference if the detention order had been passed by a specially empowered Officer. The consideration for revocation of a detention order is only whether such detention order conforms to the law. Such consideration is applicable to all detaining authorities, be it the Central Government or the State Government or any specially empowered Officer of the two. No distinction can be drawn between a specially empowered Officer or the State and Central Governments as the consideration herein for revocation of a detention order is restricted to whether or not the detention order conforms to the law.
Subsequently, the matter was again placed before the Constitution Bench in Kamleshkumar Ishwardas Patel v. Union of India and Others 9 on account of the divergent views in the State of Maharashtra & Anr. v. Sushila Mafatlal Shah and others 10 and 9 (1995) 4 SCC 51 10 (1988) 4 SCC 490 12 Amir Shad Khan v. L. Hmingliana and Others . It was held that Clause (5) of Article 22 imposes a dual obligation on the authority making the order of preventive detention. Firstly, to communicate to the detenu as soon as may be, the grounds on which the order of detention has been made; and secondly, to afford the detenu the earliest opportunity of making a representation against the order of detention. It was held that in terms of Section 21 of the 1897 Act, the authority which has ordered the detention has the power to revoke the same. Further, the detenu has the liberty to submit his representation to the authority which is competent to revoke the detention.
This Court held as under: “14. 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, who 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 Constitution Bench held that when a detention order has been passed by an Officer specially empowered for that purpose, the detenu 11 (1991) 4 SCC 39 13 has a right to make a representation against the order of detention to the said Officer. The failure of the Detaining Authority in considering such representation results in the denial of the right conferred on the detenu to make a representation against the order of detention. This right of the detenu is in addition to his right to make a representation to the State and the Central Government.
In Criminal Appeal Nos. 764-765 of 1994, the Constitution Bench of this Court in Kamleshkumar Ishwardas Patel considered three questions which were examined by the Full Bench of the Bombay High Court. The first question was whether a specially empowered officer had an independent power to revoke the order of detention. The second question is not relevant for consideration in the present case. The third question examined was whether the failure to take an independent decision on the revocation of a detention order by the specially empowered officer and merely forwarding the same with a recommendation to reject, results in non-compliance with the constitutional safeguard under Article 22(5) of the Constitution. The order of the High Court on first question was confirmed and that on the third question was set aside.
An argument was raised in respect of the third question that failure on the part of the Detaining Authority to consider the representation of the detenu results in a denial of the right of detenu to make a representation recognized under Clause (5) of Article 22, which renders 14 the detention illegal. In the aforesaid case, it was found that the representation of the detenu was not considered by the Officer making the order of detention and the High Court erred in holding that the failure on part of the Detaining Authority to consider and decide the representation is not vital to the order of detention. Thus, the aforesaid judgment is to the effect that the Detaining Authority is dutybound to consider the representation of the detenu which is a constitutional mandate under Clause (5) of Article 22 of the Constitution. Such representation has to be decided independently to the recommendation of the Advisory Board and can be accepted dehors the recommendation of the Advisory Board. Thus, the right of detenu is to seek consideration of his representation by the Detaining Authority, including the specially empowered Officer or by State or Central Government. It is constitutionally mandated by Clause (5) of Article 22.
Further, as mentioned earlier, the Detaining Authority which includes the State Government or the Central Government, examines whether the detention order is in conformity with law whereas, the appropriate government while considering the recommendation of the Advisory Board examines whether there was sufficient cause for the detention of the detenu. The appropriate government at that stage examines the report of the Advisory Board in respect of the sufficiency of material with regard to detention. The consideration by the Detaining Authority is separate and distinct to the consideration of the 15 revocation of the detention order and the consideration by the appropriate Government at the time of assessing the recommendation of the Advisory Board. Thus, it is immaterial if the detention order was passed by a specially empowered Officer or the State Government or the Central Government as all such authorities have similar jurisdiction to revoke the detention order. Clause (5) of Article 22 protects the right of the detenu by giving him the right to submit representation, which is required to be considered by the Detaining Authority, provided it is not delayed without any reason. On the other hand, the detention of the detenu beyond three months can be only on the basis of the report of the Advisory Board in respect of sufficiency of material to detain the detenu beyond the period of three months. Such right is conferred on the detenu by clause (4) of Article 22 of the Constitution.
The judgment in K. M. Abdulla Kunhi had been examined by another Division Bench judgment in Golam Biswas v. Union of India and Another 12 , wherein the specially empowered Officer passed two orders of detention. A representation was submitted seeking revocation of the detention order. The consideration of detention of the detenu was referred to the Advisory Board on 8.7.2014. The order of detention was confirmed by the Central Government on 5.9.2014 and the representation was rejected by the Central Government on 21.7.2014. Thus, referring to K. M. Abdulla Kunhi and reiterating that there is no time limit to dispose of the representation.
In view of the aforesaid case, The court is of the opinion that once the detention order has been made by any of the authorities competent to detain in terms of Section 3 (1) of the COFEPOSA Act, the representation to seek revocation of the detention order can be considered and decided by the Detaining Authority dehors the decision of the Advisory Board and the acceptance of recommendation by the appropriate Government. The consideration for revocation of a 18 detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government.
It would be a matter of prudence and propriety for the Detaining Authority to defer the decision on the representation to revoke the detention order, when the matter is being considered by the Advisory Board, consisting of three Hon’ble sitting Judges of the High Court. The consideration of the representation by the Detaining Authority in these circumstances cannot be said to be delayed as the representation was received after the matter was referred to the Advisory Board.
Thus, the court does not find any merit in the present writ petition. The same is dismissed.
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– Karthik K.P
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