Hegin Haokip vs State of Manipur and Others

D.N. Chowdhury, J.—This is an application under Article 226 of the Constitution of India for issuance of a writ of Habeas Corpus questioning the legality and validity of the detention order dated 11-3-1999 issued by the District Magistrate, Chandel against Paulin Soyang Haokip alias Soyang alias P.S. Haokip, son of late Paulin, a resident of Bijang (Tuibong) in the Churachandpur district, Manipur, under sub-section (3) read with sub-section (2) of Sections of the National Security Act, 1980 hereinafter referred to as the Act and the subsequent approval given by the Government to the continued detention of the detenu, which arose in the following circumstances. The detenu, Paulin Soyan Haokip alias Soyang alias, P.S. Haokip, was arrested on 17-2-99 by the Army personnel at Moreh and he was handed over to the O.C., Moreh Police Station. A regular criminal case under FIR Case No. 6(2) of Moreh Police Station u/s 25(1-B) of the Arms Act was registered against the detenu. The detenu was arrested and thereafter the Police implicated him in a number of other cases. During the course investigation of the case while the detenu was in judicial custody in connection with the criminal cases, he was served with the order of detention dated 11-3-99, passed by the District Magistrate, Chandel, Manipur, under the National Security Act, 1980 for acting in a manner prejudicial to the security of the State and maintenance of public order. The grounds for detention were furnished to the detenu on 15-3-99. The aforesaid detention order was approved by the State Government vide its order dated 20th March, 1999 issued by the Deputy Secy. to the Govt. of Manipur, home Department. On 24-3-99, the detenu through the Addl. Superintendent of Central Jail, Sajiwa, Manipur, submitted a representation to the Chief Secretary to the Govt. of Manipur, Imphal, Challenging the detention order and by order dated 6-4-99, the detenu was informed by the Deputy Secy. to the Govt. of Manipur, Home Department, Imphal, about the rejection of this representation. Hence this petition challenging the order of detention.

We have perused the detention order as well as the grounds of detention furnished to the detenu. There is in fact no serious challenge to the satisfaction of the detaining authoirty ; nor is there any such challenge as to the validity and legality of the grounds of detention, and in our view, rightly so. The real ground of challenge revolves round the question as to the continuance of detention on the ground of delay in disposal of the representation filed by the detenu. There is no controversy at the bar regarding the right of protection to the detenu as guaranteed under Article 22 of the Constitution of India. What is disputed is as to whether there was any delay in disposal of the representation. The right guaranteed under clause (5) of Article 22 of the Constitution of India in two fold, viz., the authority making the order is entrusted with the duty to communicate to the detenu the grounds on which the order has been made as soon as may be, after the order is passed ; and that the detenu must also be afforded the earliest opportunity of making representation against the order.

The legislative intent/mandate is indicated in sub-section (1) of Section 8 of the Act, 1980 which provides for the time frame to communicate the grounds on which the detention order has been made. Clause (5) of Article 22 of the Constitution as well as subsection (1) of Section 8 of the Act, 1980 provide that the detenu must also be afforded the "earliest opportunity of making representation against the order". The words "as soon as may be" occurring in Article 22(5) of the Constitution reflects the anxiety on part of the framers of the Constitution to enable a detenu to know about the grounds on which the order of detention has been made so as to enable him to make and effective representation against the detention. The real aim of incorporation the provisions can only be the consideration of the representation promptly and with utmost despatch. The makers of the Constitution put utmost stress/emphasis for expeditious consideration of the representation with full sense of urgency, lest the real purpose of affording earliest opportunity of making a representation is likely to be lost. The right to represent and to have the representation considered at the earliest, emanates from the Constitutional guarantee of right to personal liberty, - the right which is cherished in the Indian Republic, and protection of one''s liberty against arbitrary and unlawful exercise of such liberty. The right guaranteed under Article 22(5) of the Constitution is a fundamental right of a detenu to have his representation considered by the appropriate Government with utmost despatch. It does not countenance any delay in disposal of the representation. The right guaranteed under this Article will turn-out to be illusory and meaningless if the Government authority is allowed to sit over the matter and deal with it at its own will and convenience (Khairul Hawye v. State of West Bengal 1969 2 SCWR 529 ; In re Durga Show 1969 2 SCWR 439) . A Constitution Bench of the Supreme Court in Jayanarayan Sukul Vs. State of West Bengal, culled down the law in the following paragraphs :

"It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is to obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.

No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate government has disposed of the case as expeditiously as possible for otherwise in the words of Shelat, J. who spoke for this Court in the case of Khairul Haque, W.P. No. 246 of 1969, D/-10-9-1969 = (reported in 1969 2 SVWR 529) (supra) it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning".

There is no deviation from the above proposition of law. ''The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality" Sk. Abdul Karim and Others Vs. State of West Bengal, In Rashid Sk. Vs. State of West Bengal, the Supreme Court while dealing with the constitutional requirement of expeditious consideration of the representation of a detenu by the government as mentioned in Article 22(5) of the Constitution, observed thus :

The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. The right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty - the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion."

The law is well settled and there is no controversy in this regard. The only question for adjudication in this case is as to whether there was any delay in disposal of the representation. There is no hard and fast rule of time frame for disposal of such representation. What the Court insisted is for "reasonable expedition". What is "reasonable expedition" is a matter dependent on the circumstances of each case. No hard and fast rule as to the measure of reasonable time can be pointed, However, it certainly does not cover the delay due to "negligence, callous in-action, avoidable red tapism and undully protracted procrastination" ( Sabir Ahmed Vs. Union of India (UOI), There is no dispute about making of a representation by the detenu on 24-3-99 addressed to the Chief Secretary, Manipur. The communication dated 6-4-99 sent by the Deputy Secretary to the Govt. of Manipur, Home Department, to the detenu as to the rejection of the representation also mention about the said representation dated 24-3-99 addressed to the Chief Secretay, Manipur. As per his own letter, the said representation "which was forwarded by the Inspector General of Prisons, Manipur vide his office letter No. 9/21/98-IG(J)/2040 dated 26-3-1999".

The same secretary, however, filed and affidavit before this Court wherein in paragraph 9, he stated that "the representation made by the detenun on 24-3-99 and received by the Home Deptt. On 27-3-99 for revocation of detention". As per the above statement of Deputy Secretary (home), the representation reached the Home department on 27-3-99. The Deputy Secretary while verifying the affidavit, mentioned that paragraphs 1 to 16 are/were true to the best of his knowledge as those are based on official records and documents. The official records produced by the learned Govt. Advocate, Mr. Kh Nimaichand, however, clearly indicates that the representation was received by the Government in 25-3-99 and not 27-3-99 as stated by the Deputy Secretary in the affidavit. The records show that the representation was finally disposed of by the Chief Secretary on 2-4-99 and communicated to the detenu on 6-4-99. The note sheets further indicates that on receipt of the representation on 25-3-99, the authority sought to question as to the manner in which the representation reached the State Government on 25-3-99 and sought for explanation for sending such a representation. The authenticity and the genuineness of the representation that it was submitted by the detenu, is/was never in question by the authority, therefore, there cannot be any reasonable ground for this indifferent attitude in disposal of the representation. Mr. KH. Nimaichand, the learned Advocate in his persuasive manner sought to explain the delay and stated that the State Government obtained clarification only 27-3-99 ''as to the representation of the detenu dated 24-3-99, 28th being a Sunday and 29th being a holiday on account of Id-ud-Zuha and the representation was disposed of by the competent with utmost dispatch. But from records transpires that the file was finally processed on 30-3-99 and there was no movement of the file till 1-4-99. On 1-4-99, the concerned officer forwarded the file to the Chief Secretary who signed and rejected the representation on 2-4-99. There is no explanation as to why no action could be taken on 31-3-99.

Mr. Kh. Nimaichand, learned Govt. Advocate, submitted that the delay was duly explained and as such, the detention cannot be labelled as illegal on that ground. In support of his contention, the learned Advocate referred to the decisions in Thounaojam Lukhoi Singh Vs. District Magistrate and Others, Mahboob v. Supdt. of District Jail, Meerut. In T Lukhoi Singh (supra), there was a delay of 14 days and in Mahboob (supra), there was a delay of 4 days ; and the learned Court held that it did not vitiate the detention.

Mr. N. Kerani Singh, the learned senior counsel appearing on behalf of the petitioner, on the other hand, referred to a three Judges'' Bench decision of the Supreme Court in Rajammal Vs. State of Tamil Nadu and Another, and a decision of this Court in Lala Paite v. State of Manipur, and other, reported in 1999 (3) GLT 236.

There cannot be any dispute as to the proposition of expeditious disposal of a representation. The reason is too obvious. A person''s personal liberty is in danger and where the liberty of a person is at peril, it is incumbent on the authority to take action on the matter. Any delay is disposal of the representation would not only be irresponsible and reckless, but the same is also unconstitutional. The Constitution guaranteed the right to life and liberty which can only be taken away by a procedure established by law. The Constitution casts an obligation on the authority to consider the representation submitted by a detenu without any delay. The detenu is in the custody of the detaining authority. It is for the authority/authorities who is/are responsible for his custody to take prompt steps for forwarding the representation submitted by him and to take a decision on the representation "as soon as may be". The authority is not permitted to resort to any supine indifference or any form of slackness. Whether the delay was due to some unavoidable reasons or circumstances or for any other good reason, it is for the authority to explain. The delay caused due to the callousness or indifference in considering the representation will affect the further detention of the detenu. The learned Government Advocate, Mr. Th Ibohal, submitted that the delay, if there be any, cannot be said to be inordinate delay. What matters is the promptitude in disposal of the representation. It is not the measure and latitude of the time factor, - emphasis is on the manner and solemnity in discharging the constitutional obligation of the authority. "As soon as may be" is not to be computed in the guage of time, space or duration alone. Anxiety, earnestness and awareness of individual liberty is the key question. Dispensation of representation concerning personal liberty of a citizen should not be allowed to rest on the opportuness and convenience of the time table of the authority/authorities. The pea take by the respondents including the plea of intervention of a Sunday and a holiday on account of Id-ul-Zaha, is not sufficient to justify the delay-since there was no impediment for the file to reach the Officer with utmost promptitude in a case involving the fundamental right of a citizen. Time moves on with minutes and seconds. Each instance is preceous. Those who guard the liberty of a citizen are to alive in each moment. In view of the avoidable and the unexplained delay in disposal of the representation of the detenu, further detention of the detenu cannot be Justified and the detention order passed against the detenu is liable to be set aside. We, therefore, allow the petition and set aside the order of detention passed by the District Magistrate, Chandel on 11-3-99.

We direct the respondents/authorities to release the detenu forthwith if he is not otherwise required to be detained in connection with any other case.

The writ petition accordingly stands allowed.