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TMI Blog2012 (7) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... Adv. Mr. Chetan Chawla, Adv. Ms. Asha G.Nair, Adv. Mr. Arvind K. Sharma, Adv. Mr. B.Krishna Prasad, AOR in WR 137/11 Mr. B.H . Marlapalle, Sr. Adv. Ms. Asha G.Nair, AOR JUDGEMENT Per: Altamas Kabir J.: 1. These Special Leave Petitions and Writ Petitions are all directed against orders of preventive detention at the pre-execution stage. During the course of hearing, it was submitted on behalf of some of the Petitioners that the decision rendered in Addl. Secretary, Govt. of India vs. Alka Subhash Gadia [(1992) Supp. (1) SCC 496] that a preventive detention order could be challenged at the pre-execution stage on the five grounds enumerated in the judgment, was no longer good law on account of the subsequent enactment of the Right to Information Act, 2005, hereinafter referred to as the " R.T.I . Act", which came into force on 15th June, 2005. A connected question which was raised was whether the aforesaid decision in Alka Subhash Gadia's case (supra) was per incuriam , since it did not have the occasion to notice subsequent decisions on the same question. Another question which was raised was whether the five instances indicated in Alka Subhash Gadia's case (supra), under which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de out, a petition under Article 32 has to be entertained. 6. Various other judgments were also referred to by Mr. Rohatgi , of which it will be worthwhile to refer to the decision of this Court in Haradhan Saha vs. State of West Bengal [(1975) 3 SCC 198], Olga Tellis & Ors . vs . Bombay Municipal Corporation [(1985) 3 SCC 545] and K.K. Kochunni vs. State of Madras [(1959) Supp. (2) SCR 316]. All these judgments have held that judicial review of administrative action, even when fundamental rights are threatened, is permitted on grounds of relevance, reasonableness, necessity, delay, casualness and for infringement of Articles 14, 19 and 21. In fact, it was in K.K. Kochunni's case (supra) that it was observed by the Constitution Bench that the right to enforce a fundamental right conferred by the Constitution was itself a fundamental right guaranteed by Article 32 of the Constitution and this Court could not refuse to entertain a petition under that Article simply because the Petitioner had/might have any other alternative legal remedy. The said position was further reiterated by another Constitution Bench in Haradhan Saha's case (supra), while dealing with a case involving prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uashed, inter alia, on the ground that there was no proximate and live link between the activities of the detenu and the detention order. In the said matter, facts relating to the arrest of the detenu and subsequent release on bail more than 12 years before the offence in respect of which detention orders had been passed, were held to be irrelevant and/or improper for justification of an order of detention. Mr. Rohatgi pointed out that it was also held therein that mere apprehension that the detenu was likely to be released on bail, whereafter he would indulge in further prejudicial activities, was not sufficient to justify the detention order in the absence of any other ground. 8. The next decision referred to by Mr. Rohatgi was delivered by a Bench of three Judges of this Court in Rekha vs. State of Tamil Nadu [(2011) 5 SCC 244], wherein while disagreeing with some of the observations made in Haradhan Saha's case (supra), the Hon'ble Judges went on to hold that though in Haradhan Saha's case it had been held that the authorities could take recourse to both criminal proceedings and also preventive detention, it did not mean that such would be the law in all cases, even though in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in Alka Subhash Gadia's case (supra). 11. Mr. Rohatgi submitted that having regard to the various circumstances which this Court had no occasion to consider in Alka Subhash Gadia's case (supra), it cannot be accepted that the challenge to preventive detention order at the pre-execution stage could not be made on any other ground other than the five exceptions mentioned in Alka Subhash Gadia's case (supra). Mr. Rohatgi urged that besides the above, the right of a detenu to information relating to the grounds of detention under Section 3 of the Right to Information Act, 2005, was also a circumstance which could not be taken into consideration by the Hon'ble Judges while deciding Alka Subhash Gadia's case (supra). Accordingly, in the changed circumstances, it cannot be held that apart from the five exceptions mentioned in Alka Subhash Gadia's case (supra), a detenu could not be denied the grounds of detention on the basis of which he was to be detained at the pre-execution stage. 12. In addition to the submissions made by Mr. Rohatgi , submissions were also advanced by Mr. Ravindra Keshavrao Adsure , Advocate, appearing for some of the Petitioners in these matters. In fact, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged that the orders of detention which violated the aforesaid principles could not, therefore, be sustained and could also be challenged at the pre-execution stage. 14. Appearing on behalf of the Union of India, learned Additional Solicitor General, Mr. P.P. Malhotra , contended in response to the first point raised, that the grounds for intervention at the pre-detention stage, as indicated in Alka Subhash Gadia's case (supra), are exhaustive and not illustrative, and had been so held in subsequent decisions of this Court, and in particular, the decision of a Three-Judge Bench in the case of Sayed Taher Bawamiya (supra). The learned ASG contended that in the said case it had also been sought to be argued that the exceptions in Alka Subhash Gadia's case (supra) were not exhaustive, but merely illustrative, but the Three-Judge Bench had rejected such contention upon holding that in Alka Subhash Gadia's case (supra), it is only in the five types of instances indicated, that the Courts may exercise its discretion and jurisdiction under Article 226 and 32 of the Constitution at the pre-execution stage. The learned ASG laid stress on the observations made in paragraph 7 of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act stipulates that it had been passed to promote transparency and accountability in the working of every public authority, certain restrictions had been imposed on divulging certain information as indicated in Section 8 of the Act. Referring to clause (a) of Section 8 of the aforesaid Act, the learned ASG submitted that it had been stipulated that notwithstanding anything contained in the Act, there would be no obligation to any citizen to give information, disclosure of which would prejudicially affect the economic interest of the State, relations with foreign States or such information which would impede the process of investigation or the apprehension or prosecution of offenders. The learned ASG also pointed out that there was no obligation to provide information which relates to personal information, the disclosure of which has no relationship to any public activity or interest. While referring to Section 24 of the Act, the learned ASG submitted that it guaranteed exemption to the agencies mentioned in the 2nd Schedule and the Central Economic Intelligence Bureau was one of them. Therefore, if a proposed detenu or his representative made an application for disclosure of groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he grounds for such arrest. Clause (2) provides that such a person who is arrested and detained in custody has to be produced before a Magistrate within a period of 24 hours of such arrest. However, an exception is made by clause (3), which provides that nothing in clauses (1) and (2) shall apply, amongst others, to any person who is arrested or detained under any law providing for preventive detention. Clause (4) thereafter sets out that no law providing for preventive detention shall authorize such detention for more than three months without following the procedure subsequently set out. What is relevant for our consideration while deciding the above mentioned question is clause (5) of Article 22 which is extracted hereinbelow :- "(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." 21. It may immediately be noticed from the opening words of clause (5) that the grounds on which the person is detained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person." 22. Even under Sub-Section (1) of Section 8 of the above Act, the legislature made an exception to the disclosure of information which could be contrary to the interests of the nation, subject to the provision that such information may also be allowed to be accessed in the public interest, which overweighed the personal interests of the citizen. Not much discourse is required with regard to the primacy of the provisions of the Constitution, vis-à-vis the enactments of the legislature. It is also not necessary to emphasise the fact that the provisions of the Constitution will prevail over any enactment of the legislature, which itself is a creature of the Constitution. Since clause (5) of Article 22 provides that the grounds for detention are to be served on a detenu after his detention, the provisions of Section 3 of the R.T.I . Act, 2005, cannot be applied to cases relating to preventive detention at the pre-ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir Lordships held that it was not enough that the detention order must satisfy the tests of all the said rights so far as they were applicable to individual cases. Their Lordships also emphasized in particular that it was 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 of the Constitution and the nature of constitutional rights thereunder. Their Lordships were of the view that read together the Articles indicate that the Constitution permits both punitive and preventive detention, provided it is according to procedure established by law made for the purpose and if both the law and the procedure laid down by it are valid. Going on to consider the various decisions rendered by this Court in this regard, Their Lordships in paragraph 5 observed as follows :- "5. The neat question of law that falls for consideration is whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it. As a corollary to this question, the incidental question that has to be answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu , but prevents their abuse and the perversion of the law in question." 26. Nowhere has it been indicated that challenge to the detention order at the pre-execution stage, can be made mainly on the aforesaid exceptions referred to hereinabove. By prefacing the five exceptions in which the Courts could interfere with an order of detention at the pre-execution stage, with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein, would amount to imposing restrictions on the powers of judicial review vested in the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution. The exercise of powers vested in the superior Courts in judicially reviewing executive decisions and orders cannot be subjected to any restrictions by an order of the Court of law. Such powers are untrammelled and vested in the superior Courts to protect all citizens and even non-citizens, under the Constitution, and may require further examination. 29. In such circumstances, while rejecting Mr. Rohatgi's contention regarding the right of a detenu to be provided with the grounds of detention prior to his arrest, we are of the view that the right of a detenu to challenge his detention at the pre-execution stage on grounds other than those set out in paragraph 30 of the judgment in Alka Subhash Gadia's case (supra), requires further examination. There are various pronouncements of the law by this Court, wherein detention orders have been struck down, even without the apprehension of the detenu , on the ground of absence of any live link between the incident for which the detenu was being sought to be detained an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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