TMI Blog1990 (12) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... mits to the order of detention. No prima facie case is made out either before the High Court or before us for challenging the order of detention which would impel the Court to interfere with it at this pre-execution stage. Unfortunately, the High Court disregarding the law on the subject and the long-settled principles on which alone it can interfere with the detention order at this stage has directed the authorities not only to furnish to the detenu the order of detention but also the grounds of detention and the documents relied upon for passing the detention order. The appellants took the plea that although they were willing to produce the order of detention and the grounds of detention for the perusal of the Court, they cannot furnish them to the first respondent unless, as required by the Act, the detenu first submits to the impugned order. The High Court thereupon issued the contempt notice by its order dated June 30, 1989. For the reasons discussed above, we are of the view that both the orders of the High Court directing the appellants to furnish to the detenu or to the first respondent or her counsel the order of detention, the grounds of detention and the documents sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents to the first respondent by 5.30 p.m. on June 29,1989. Thereafter, the matter was directed to stand over till July 3, 1989 to enable the first respondent to consider whether any amendment to the writ petition was required. The Court also directed that the matter be posted for further direction on June 30,1989. 3. The Assistant Director of Enforcement filed an affidavit on June 29,1989 stating that under Article 22 (5) of the Constitution, the grounds of detention have to be given to the person when he is detained. Since the constitutional mandate did not go further than that, the detaining authority could not be compelled to furnish the documents to anybody else other than the detenu after he is detained. The authority also showed its willingness to produce the documents for the perusal of the High Court without showing them first to the first respondent. 4. The matter came up before the learned Judges on June 30,1989. The learned Judges found that no application was made for any extension in time to carry out the orders of the Court nor was any statement made that it was difficult to comply with the order. The learned Judges, therefore, held that the officers wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to examine the relevant provisions of the Constitution which permit preventive detention of an individual. After the decision of this Court in Rustom Cavasjee Cooper v. Union of India [(1970) 3 SCR 530] which is otherwise known as the Bank Nationalisation case and in Maneka Gandhi v. Union of India [(1978) 2 SCR 621], it is now well-settled (if ever there was any doubt) that the fundamental rights under Chapter III of the Constitution are to be read as a part of an integrated scheme. They are not exclusive of each other but operate, and are, subject to each other. The action complained of must satisfy the tests of all the said rights so far as they are applicable to individual cases. It is not enough, that it satisfies the requirements of any one of them. In particular, it is well-settled that Article 22 (5) is not the sole repository of the detenu s rights. His rights are also governed by the other fundamental rights particularly those enshrined in Articles 14,19 and 21. Article 14 guarantees to all persons equality before the law and equal protection of the laws. Articles 19,20,21 and 22 are grouped under the broad heading Right to Freedom . Article 19 is breached if any cit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention law, as stated above, it is the safeguards contained in sub-clauses (4) to (7) of Article 22 which are an exception to sub-clauses (1) and (2) thereof, which come into play. Sub-clause (4) States that the preventive detention law shall not provide for the detention of a person for a period longer than three months without his having to be produced before the magistrate as is the requirement of sub-clause (2). However, if he is to be detained beyond the period of three months, it can be done so, only if the Advisory Board mentioned therein reports before the said period of three months, that there is, in its opinion, sufficient cause for such detention. It further states that even if the Advisory Board so reports, the person cannot be detained beyond the maximum period prescribed in the law of detention. The sub-clause also lays down that the law of detention must be a law passed by the Parliament laying down both (a) the maximum period for which a person may be detained without obtaining the opinion of the Advisory Board, (b) the maximum total period for which a person may be detained preventively and (c) the procedure to be followed by the Advisory Board in an inquiry bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itations:- (i) in the exercise of their discretionary jurisdiction the High Court and the Supreme Court do not, as Courts of Appeal or Revision, correct mere errors of law or of fact; (ii) the resort to the said jurisdiction is not permitted as an alternative remedy for relief which may be obtained by suit or other mode prescribed by statute. Where it is open to the aggrieved person to move another Tribunal or even itself in another jurisdiction for obtaining redress in the manner provided in the statute, the Court does not, by exercising the writ-jurisdiction, permit the machinery created by the statute to be bypassed; (iii) it does not generally enter upon the determination of questions which demand an elaborate examination of evidence to establish the right to enforce which, the writ is claimed; (iv) it does not interfere on the merits with the determination of the issues made by the authority invested with statutory power, particularly when they relate to matters calling for expertise, unless there are exceptional circumstances calling for judicial intervention, such as, where the determination is malafide or is prompted by extraneous considerations or is made in contravention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the detention law and of the orders passed under it and the scope of the powers of the Court in these matters, this Court has often emphasised the distinction between the existence of its wide powers and the propriety and desirability of using them. In the Special Reference No. 1 of 1964 reported in [(1965) I SCR 492] which arose out of the dispute as to the constitutional relationship between the High Court and the Uttar Pradesh State Legislature, this Court pointed out that when a citizen moves the Court and complains that his fundamental right under Article 21 is contravened, it would plainly be the duty of the Court to examine the merits of the said contention and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure established by law. The Court held that the power of the High Court under Article 226 and the authority of this Court under Article 32 are not subject to any exceptions. Therefore, it cannot be contended that a citizen cannot move the High Court or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The judicial power conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim auxiliary orders under Art. 226 of the Constitution can be said to have been taken away by necessary implication when the High Court is dealing with habeas corpus petitions in relation to orders of detention passed under Rule 30 of the Rules . The Court then dealt with the contention that the order of bail in detention proceedings would not be interim, but would be final and, therefore, that fact distinguished cases of preventive detention under detention law from other cases of habeas corpus petitions. Negativing the said contention the Court held:- (9) This argument also is not well-founded. It is obvious that when the High Court releases a detenu on bail pending the final disposal of his habeas corpus petition, the High Court will no doubt take all the relevant facts into account and it is only if and when the High Court is satisfied that prima facie, there is something patently illegal in the order of detention that an order for bail would be passed. The jurisdiction of the High Court to pass an interim order does not depend upon the nature of the order, but upon its authority to give interim relief to a party which is auxiliary to the main relief to which the party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to a challenge to the validity of an order of detention on the ground that it is passed malafide, it would not be safe, sound or reasonable to make an interim order on the prima facie provisional conclusion that there may be some substance in the allegations of malafides. What is true about malafides is equally true about other infirmities on which an order of detention maybe challenged by the detenu. That is why the limitation on the jurisdiction of the Court to grant relief to the detenus who have been detained under R. 30 of the Rules inevitably introduces a corresponding limitation on the power of the Court to grant interim bail. (11) In dealing with writ petitions of this character, the Court has naturally to bear in mind the object which is intended to be served by the orders of detention. It is no doubt true that a detenu is detained without a trial; and so, the Courts would inevitably be anxious to protect the individual liberty of the citizen on grounds which are justiciable and within the limits of their jurisdiction. But in up holding the claim for individual liberty within the limits permitted by law, it would be unwise to ignore the object which the orders of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - .......The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof........This being the nature of the proceeding, it is impossible to conceive how it can possibly be regarded as capable of objective assessment. The matters which have to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of the surrounding circumstances and other relevant material, would be likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of clause (1) of sub-section (1) of Section 3, and if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not matters susceptible of objective determination and they could not be intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. In Smt. Poonam Lata v. ML. Wadhwan Ors. [1987 (30) E.L.T. 3 (S.C.) = (1987) II SCR 1123] this Court held that the period for which the detenu is on parole is liable to be excluded from the total period for which the detenu is detained. Parole brings the detenu out of confinement from the place and the detention as contemplated by the Act is interrupted until the detenu is put back into custody. The running of the period recommences then and the total period of one year has to be counted by putting the different periods of actual detention together. The Court further held that whether it be under Art. 226 or 32 of the Constitution, the Court has no jurisdiction either under the Act or under the general principles of law or in exercise of its extraordinary jurisdiction to deal with the duration of the period of detention either by abridging or enlarging it. The only power that is available to it is to quash the order in case it is found to be illegal. It would not, therefore, be open to the Court to reduce the period of detention by admitting the detenu on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,1986 passed in Criminal Miscellaneous Petition No. 899 of 1986 in Criminal Writ Petition No. 1584 of 1985. By this order this Court held that since the period for which the order of detention was made had expired, the order could no longer be enforced. In this case, earlier while admitting the writ petition challenging the detention order, the Court had restrained the respondent-District Magistrate from arresting the petitioner. In Writ Petition No. 526 of 1986, on September 16,1986, this Court had directed that the petitioner should not be arrested until further orders. In Writ Petition No. 3380 of 1982, similarly, on January 7,1983 this Court had directed that the petitioner should not be arrested under the detention order subject to the petitioner executing a personal bond in the sum of Rs. 25,000/- and also surrendering his passport to the Registrar of this Court within 24 hours. The contention on behalf of the respondents on the basis of these three orders was that they show that this Court had in fact interfered with the detention orders before the detenus had submitted to them. 14. We may now refer to the decisions of various High Courts on this point. The first of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. [(1981) 1 SCR 206] and hence no order passed under any law including of preventive detention is above judicial scrutiny. The same view is reiterated in S.P. Sampath Kumar v. Union of India Ors. [(1987) 1 SCC 124] and P. Sambamurthy Ors. v. State of Andhra Pradesh Anr. [(1987) 1 SCC 362]. But the Court has also stated in these cases that the Parliament can certainly, without in any way violating the basic structure of the Constitution, set up an alternative institutional mechanism or authority for judicial review, if necessary, even by amending the relevant provisions of the Constitution. 16. It is against the background of this position in law that we have to examine the contentions raised on behalf of the parties before us. It was contended by Shri Sibbal, learned Additional Solicitor General, on behalf of the appellants that since the detention law is constitutionally valid, the order passed under it can be challenged only in accordance with the provisions of, and the procedure laid down, by it. In this respect, there is no distinction between the orders passed under the detention law and those passed under other laws. Hence, the High Court under Article 226 and this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual has an absolute right to liberty and, therefore, the burden is on the State to satisfy that the deprivation of the liberty is necessary in the interests of the general public, security of the State, public order etc. before apprising him of the grounds of his arrest. His second contention which was the extension of the first, was that since the State has to satisfy that the deprivation of the liberty of the person is so necessary, it must place all its cards before the Court before his arrest, particularly when he approaches the Court making a grievance against the order. In this connection, he contended that the extent of the right to life and liberty under Article 21 of the Constitution has been expanded by this Court to include not only the right to live but also the right to live with dignity, and it is affected the moment the person loses his liberty before knowing the reasons for the same or having an opportunity to challenge them. This is particularly so when the facts on the basis of which the arrest is sought to be made are within the exclusive knowledge of the State. The third contention was that, as has been held by this Court, a person can be deprived of his l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etenu by the advisory board in person and the submission by the board of its report to the Government within 11 weeks from the date of detention, (vi) the obligation of the Government to revoke the detention order if the advisory board reports that there is in its opinion no sufficient cause for the detention of the person concerned, (vii) the provision of the maximum period for which a person can be detained and (viii) revocation of the detention order by the Government on the representation of the detenu independently of the recommendation of the advisory board, etc. In addition, the detenu or any one on his behalf has a right to move the High Court and the Supreme Court by way of a habeas corpus petition challenging the detention on various grounds which are already pointed out above while discussing the various authorities. It must further be appreciated that the validity of the Act in question being permitted to be enacted by the Constitution, has also been upheld by this Court with all its present provisions as they stand. Howsoever repugnant the notion of preventive detention may be to the champions of individual liberty, it has also to be remembered that the power to make s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature to make a law under which a person may be arrested and detained without first communicating to him the grounds of his arrest. The provisions of Section 3 (3) of the present Act which are made for the purpose of Article 22 (5) of the Constitution provide that ordinarily the grounds of arrest shall be communicated within the maximum period of 5 days, and in exceptional circumstances and for reasons to be recorded in writing they shall be communicated within a period of 15 days from the date of the detention. These provisions of the Act have not been faulted on any account. In the face, therefore, of the clear provisions of the Constitution and of the valid Act, it is not open to contend that the provisions of Articles 14, 19 and 21 of the Constitution prevent a person being deprived of his liberty without first apprising him of the grounds of his arrest. For this very reason, it is also not open to contend that since the State has all the facts in its possession which require the arrest and detention of the person, it must first disclose the said facts before depriving him of his liberty. Since the provisions of Article 22 of the Constitution pointed out above and of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so not well-merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question place any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the Courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the Courts insist that the aggrieved person first allow the due operation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detenu or anyone on his behalf to challenge the detention order by way of habeas corpus petition on any ground available to him. It is not, therefore, correct to say that no judicial review of the detention order is available. In the view we are taking which applies also to the cases under other laws, the stage at which the judicial review is made by the Court only stands deferred till after the order is executed. A ground on which a detention order is challenged which requires investigation and cannot be adjudicated without hearing the other side and without proper material, has necessarily to await decision till the final hearing. In such cases the operation of the order of detention by its very nature cannot be stayed pending the final outcome. The only proper course in such cases is to hear the petition as expeditiously as possible. 21. This still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether it can be challenged at its pre-execution stage on the limited grounds available. In view of the discussion aforesaid, the answer to this question has to be firmly in the negative for various rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-section (1) of Section 6 of the SAFEMA is issued to him, a copy of which is also sent to her. Thus, the assistance of the High Court under Article 226 of the Constitution is sought by the first respondent on behalf of the detenu to secure the order of detention with a view to defend the proceedings under the SAFEMA. In other words, the proposed detenu is trying to secure the order of detention indirectly without submitting to it. What is further, he is also trying to secure the grounds of detention as well as the documents supporting them which he cannot get unless he submits to the order of detention. No prima facie case is made out either before the High Court or before us for challenging the order of detention which would impel the Court to interfere with it at this pre-execution stage. Unfortunately, the High Court disregarding the law on the subject and the long-settled principles on which alone it can interfere with the detention order at this stage has directed the authorities not only to furnish to the detenu the order of detention but also the grounds of detention and the documents relied upon for passing the detention order. The relevant portion of the order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
