Keshav Babu Shivhare (In Jail) vs Superintendent of District Jail and Others

A.P. Mishra, J.—The Petitioner challenges his detention order dated 31st August, 1995 (Annexure 1 to the writ petition) u/s 3(2) of the National Security Act, 1980 (the Act) passed by the District Magistrate, Hamirpur. The ground of detention is (Annexure-2 to the writ petition). The detention order has been passed only on the basis of incident dated 1st July, 1995, which took place inside the District Court Campus, in which the Petitioner was main conspirator. In that incident one Brijendra Pratap Singh, Advocate, was murdered by the hired professional criminals, namely, Deepak, Raj and Ajai. Due to the said murder the persons present inside the campus, including officers and litigants started running helter-skelter to save their lives. Even the judicial proceedings were paralysed and the peace and tranquility was affected. According to the counter-affidavit filed by the detaining authority he passed the detention order on the basis of the report of the sponsoring authority on the basis of relevant material and after being fully satisfied. First information report of the said incident is dated 1st July, 1995 in Case Crime No. 194 of 1995. The detaining authority in passing the detention order has confined to only incident dated 1st July, 1995, though reference was made to various other criminal activities of the Petitioner. The detaining authority specifically averred that in passing the detention order he has only confined to the aforesaid one incidence.

The Petitioner was taken into custody on the 2nd July, 1995 in the aforesaid case crime in pursuance to the custody warrant issued by the Chief Judicial Magistrate, Hamirpur. While in detention the aforesaid detention order dated 31st August, 1995, along with the grounds of detention (Annexure-2 to the writ petition) was served on him. Thereafter the Petitioner submitted his representation against the detention order on 18th September, 1995, which was forwarded through the District Magistrate on 19th September, 1995. The State Government rejected the same on the 30th September, 1995, about which the Petitioner was informed on the 1st October, 1995. 11th October, 1995, was the date fixed before the Advisory Board on which date detenu was produced before it and was heard in person. The detention order dated 31st August, 1995, was sent to the Government, which was received on 4th September, 1995 and was approved by the State Government on the 7th September, 1995. A reference by the same was made to the Government of India u/s 3(5) of the Act on the 8th September, 1995, and to the Advisory Board u/s 10 of the Act.

On these facts, the Petitioner has confined his argument only on one ground, namely, the obligation cast on the Respondent authority to intimate the detenu that he can make representation not only to the State Government but also to the Central Government was violated as no such intimation was given to the detenu, hence is violative of Article 22(5) of the Constitution. It is not in dispute that no such intimation was given to the detenu that he can make representation to the Central Government, hence the detenu made representation only to the State Government.

Repelling this contention for the Petitioner the argument for the State Government is that in view of Section 8(1) of the Act obligation to inform the detenu for making representation is only to the appropriate government and appropriate government as defined u/s 2(a) of the Act is Government which passed detention order, which is the State Government in the present case. This apart, further contention is, in any case, no prejudice could be said to have been caused to the Petitioner as, in fact, the said representation of the Petitioner dated 18th October 1995, a copy of the same was also sent to the Government of India on the 7th September, 1995.

For the Petitioner argument is, State cannot take defence of any prejudice in a case where not doing an act amounts violation of constitutional right. It was obligatory for the State to have intimated the detenu. Admittedly, no representation was given to the Central Government and if a copy of the representation which was given to the State Government was only sent, that representation could not constitute to be a representation to the Central Government by the detenu. Next relying on Section 14 of the Act, it is urged, since power of revocation of the detention order is also with the Central Government in addition to the State Government, the obligation for forwarding the representation under this Act cannot be confined to the State Government by virtue of Section 8(1): Relevant portion of Section 14(1) of the Act is quoted hereunder:

Revocation of detention orders. Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified,-

(a) notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of Section 3, by the State Government to which that officer is subordinate or by the Central Government.

(b) notwithstanding that the order has been made by a State Government, by the Central Government.

Petitioner strongly relied on two division bench decisions of this Court on this point:

Ramesh Kalia & Dinesh @ Dineshwar & Ramesh v. State of U.P. and Anr. W.P. No. 493 (HC) of 1993:

It is also urged that the Petitioner was deprived of making representation before the Central Government as he was informed that he could make representation either to the State Government or to the Central Government and as such the Petitioner made representation to the State Government only and could not make any representation to the Central Government. It is argued on behalf of the State that since the detenu had made representation to the State Government he had no constitutional right to approach Central Government and to get his representation decided by the Central Government as under the Act the representation is to be made to the appropriate authority and in the present case the appropriate authority and in the present case the appropriate authority is the State Government. Section 3(5) of the Act provides that when any order is made or approved by the State Government under this section, State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the State Government having a bearing on the necessity for the order. Section 14 of the Act further provides that the detention order may at any time be revoked or modified notwithstanding that the order has been made by the State Government by the Central Government. The aforesaid provision, therefore, go to indicate that even if the State Government passes an order of detention as appropriate authority, the said order can also be revoked or modified by the Central Government. The detenu, in our opinion, therefore, has also a right to approach the Central Government by means of representation to get the order of detention revoked. Similar point was raised in the case reported in 1993 Lucknow Law Journal page 58 (Giani Harendra Singh v. State of U.P.). A Division Bench of this Court has observed that since the Central Government has been given the right to revoke or modify the detention order, it implies that a person detained has the right to approach the Central Government by proper representation.

Ram Naresh v. Superintendent. District Jail, Banda and Ors. 1995 U.P. Criminal Ruling 385:

The main point, which has been urged before us is that the Petitioner has a right to make representation to the Central Government also u/s 14 of the N.S.A. In the detention order the detenu was not informed that he has a right as well. Therefore, there was violation of Article 22(5) of the Constitution.

This decision further quoted with approval the following observation of the learned single Judge in the case of Girdhari Lal v. District Magistrate Shahjahanpur and Ors. 1994 LLJ 284:

It will appear from a perusal of Section 14 of the Act that the Central Government and the State Government have concurrent powers to revoke a detention order passed under the Act and the power may be exercised by the Central Government notwithstanding the fact that the order has been made by a State Government.

If the detenu has a right u/s 14 of the Act to make a representation to the Central Government, a corresponding duty lies on the detaining authority, to inform the detenu about that right and to give him an opportunity to make representation to the Central Government. Moreover, it is not a question of the interpretation of Section 8 of the Act only, because it is the question of the exercise of a Constitutional right that has been conferred by Article 22(5) of the Constitution on the detenu and since the Constitution is the paramount law and it overrides all other legislative enactments, the right emanating from Article 22(5) read with Section 14 of the Act, cannot be denied to the detenu.

On behalf of the State Government it is argued with vehemence that the decision of the said two Division Benches require reconsideration and the matter be referred to the larger bench. Main reliance was placed on the decision in the case of State of Uttar Pradesh Vs. Zavad Zama Khan, :

The principle that emerges from all these decisions is that the power of revocation conferred on the Central Government u/s 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own sources including that supplied by the State Government under Sub-section (5) of Section 3 or from the detenu in the form of a petition for representation. It is for the Central Government to decide whether or not it should revoke the order of detention in a particular case. In the present case the detenu was not deprived of the right of making a representation to the detaining authority under Article 22(5) of the Constitution read with Section 8(1) of the Act. Although the detenu had no right to simultaneously made a representation against the order of detention to the Central Government under Article 22(5) and there was no duty cast on the State Government to forward the same to the Central Government, nevertheless the State Government forwarded the same forthwith. The Central Government duly considered that representation which in effect was nothing but a representation for revocation of the order of detention u/s 14 of the Act. That being so it was not obligatory on the part of the Central Government to consider a second representation for revocation u/s 14. We may profitably refer to Phillipa Anne Duke''s case AIR 1982 SC 1178 (supra), where in somewhat similar circumstances it was held that failure of the Central Government to consider a representation for revocation of an order of detention u/s 11(1)(b) of the COFEPOSA Act handed over to the Prime Minister during her visit to England did not render the continued detention invalid. It was observed:

Representation from whatever source addressed to whomsoever officer of one or other department of the Government cannot be treated as a representation to the Government u/s 11(1)(b) of the COFEPOSA Act.

It is true this holds, the detenu had no right to simultaneously make representation against the order of detention to the Central Government under Article 22(5) of the Constitution and there was no duty cast on the State Government to forward the same to the Central Government and as in the present case it further holds nevertheless the State Government forwarded the same forthwith.

Thus the question is whether right of detenu to make representation is confined as stipulated in Section 8(1) to the appropriate Government or does it extend to make representation in addition to the appropriate Government to the Central Government by virtue of Section 14 of the Act. Section 2(a) defines appropriate Government, which is quoted hereunder:

Definitions.- In this Act, unless the context otherwise requires,-

(a) appropriate Government" means, as respects detention order made by the Central Government or a person detained under such order, the Central Government, and as respect a detention order made by a State Government or by an officer subordinate to a Government or as respects a person detained under such order, the State Government.

Relevant Section 8(1) of the Act is also quoted hereunder:

Grounds of order of detention to be disclosed to persons affected by the order.-

(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government.

Section 8(1) confines the obligation of informing the detenu of making a representation to the appropriate Government and as per definition of the appropriate Government by virtue of Section 2(a) it is the State Government as the order of detention has been passed by the State Government. It is significant under this Act by virtue of a Section 3(5), obligation is cast on the State Government after it approves the order of detention to report to the Central Government within seven days of its approval along with the ground on which the order has been made. Thus coupled with the provisions of Section 14(1), where power is given to the State Government lo revoke the detention order, it is inescapable that the power under this statute is not only confined to the detaining authority, namely, the State Government, but, in addition is also with the Central Government. The question then arises what is the right as enshrined under Article 22(5) of the Constitution of making representation, could it be confined to Section 8(1) only to State Government or the right would also be to make representation to the Central Government, which is also authorised to revoke the detention order

In Veeramani v. State of T.N. 1994 SCC 482 , the Court was considering the detention order under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Forest-Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982, and it was held when question was raised as to which authority a representation should be made. It was held, representation should be made to an authority having power to approve, revoke or rescind the detention order. This decision quoted the following passage with approval in the case of Amir Shad Khan and another Vs. L. Hmingliana and others, . This decision was u/s 11 of the COFEPOSA Act:

It is obvious from a plain reading of the two Clauses of Sub-section (1) of Section 11 that where an order is made by an officer of the State Government, the State Government as well as the Central Government are empowered to revoke the detention order. Where, however, the detention is passed by an officer of the Central Government or State Government, the Central Government is empowered to revoke the detention order.

Now this provision is clearly without prejudice to Section 21 of the General Clauses Act. This clarifies why the power u/s 11 is conferred without prejudice to the provisions of Section 21 of the General Clauses Act. Thus on a conjoint reading of Section 21 of the General Clauses Act and Section 11 of the Act it becomes clear that the power of revocation can be exercised by three authorities, namely, the officer of the State Government of the Central Government as well as the Central Government. The power of revocation conferred by Section 8(1) of the Act satisfies the requirement of Article 22(5) whereas Section 11 of the Act satisfies the requirement of the latter part of Article 22(5) of the Constitution. The Statutory provisions, therefore, when read in the context of the relevant Clauses of Article 22, make it clear that they are intended to satisfy the constitutional requirements and provide detenu should represent against his detention order. Viewed in this perspective it cannot be said that the power conferred by Section 11 of the Act has no relation whatsoever with the constitutional obligation cast by Article 22(5).

Section 11 of the COFEPOSA Act is pari materia with Section 14 of the National Security Act. To the similar effect is again quoted with approval in this very decision the following passage in the case of Raziya Umar Bakshi (Smt.) v. Union of India 1980 SCC 846:

This observation would show that the power of revocation conferred by Section 11 of the Act has a nexus with the right of representation conferred on the detenu by Article 22(5), and, therefore, the State Government when requested to forward a copy of the representation to the Central Government is under an obligation to do so.

The Supreme Court in the Veeramani (supra) ultimate holds:

It may be noted that Article 22(5) casts an obligation on the detaining authority to communicate to the detenu the grounds and to afford to the detenu the earliest opportunity of making the representation. The Article does not say to whom such representation is to be made but the right to make a representation against the detention order undoubtedly flows from the constitutional guarantee enshrined therein. The next question as to whom such representation should be made, depends on the provisions of the Act and naturally such a representation must be made to the authority who has power to approve, rescind or revoke the decision.

This decision makes it clear, the right of making representation is to the authority or the Government which has right to revoke the detention order and in terms of this decision, the detenu would have a right of making representation to the Central Government by virtue of Section 14 of the Act. Making representation to an authority, as held in this case, would depend on the provisions of a statute and since by virtue of Section 14 power of revoking the detention order is with the Central Government, as a necessary corollary the obligation is cast on the authority to intimate to the detenu of his right of making representation to the Central Government also.

Learned Additional Government Advocate relying on the decision of Amin Mohammad Qureshi v. Commissioner of Police, Greater Bombay 1994 SCC 498, urged that there is difference between the COFEPOSA Act and the National Security Act. The argument is that the said decision only holds that the representation to be made under the National Security Act would be to the Central Government and the State Government, as the case may be.

This decision really refers to the decision of Amir Shad Khan (supra) which was under COFEPOSA Act and the distinction drawn between this and the National Security Act (NSA) is that under NSA the detention order ceases to remain in force if not approved within 12 days which makes State Government as detaining authority. Under the COFEPOSA Act, it is the officer of the State Government or the Central Government who has power to pass detention order who is the detaining author and the revocation by them could only be by virtue of Section 21 of the General Clauses Act. The only question urged and adjudicated is whether the detaining authority was or was not under the obligation to inform detenu that it can also make a representation to the authority which passed the order of detention. It was held it required approval of the State Government u/s 3(4) of the Act, a representation could only be made to the State Government and not to the authority which passed the detention order.

B. Alamelu v. State of Tamil Nadu and Ors. JT 1994 (7) SC 517 is a case under the COFEPOSA Act. The question was whether the delay in disposal of representation by the Central Government of a detenu was violative of Article 22(5) of the Constitution or not. The right for considering the representation only arises by virtue of Section 11 of the COFEPOSA Act, which is pari materia with Section 11 of the NSA.

For all these reasons, therefore, it must be held that the constitutional right of the detenu under Article 22(5) has got violated on account of the non-sending of the copy of the representation by the jailor to the appropriate authority of the Central Government as expeditiously as possible...hence continued detention of the detenu has become illegal...

When a statute confers a power on any authority to revoke a detention order, obligation flows by virtue of Article 22(5) inherently that a detenu be informed of this legal position so that he make a representation to such an authority by virtue of Article 22(5) of the Constitution and in case of any failure to inform a detenu violates the constitutional right of such detenu and the detention order would become illegal.

To the similar effect constitution Bench of the Supreme Court in Kamlesh Kumar Ishwardas Patel v. Union of India 1995 SCC 643 held:

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, which 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.

This decision in unequivocal words holds that the right to make representation of a detenu is not only confined to the detaining authority, which made the order of detention but also to the authority which is competent to give him the relief for revoking the said order thereby give relief to make representation carries with 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 authority who is required to consider such representation.

In Jai Prakash Vs. District Magistrate, Bulandshahar, U.P. and anothers, , the case was under National Security Act though it was specifically informed to the detenu that he has a right to make representation to the State and also to the Central Government, but Superintendent of Jail sent the representation to the State Government and not to the Central Government. It was held, detention was illegal. This also indicates that there is obligation cast on the detaining authority to send the representation to the Central Government.

The argument for the State that no prejudice is caused to the detenu as his representation was forwarded by the State Government to the Central Government has also no merits. It is not disputed that the detenu was not informed that he can make representation to the Central Government and he did not make any representation to the Central Government. What was sent to the Central Government was only a copy of representation to the State Government and not a representation to the Central Government. This apart, where fundamental right or constitutional right is violated, the question of no prejudice is not relevant. No authority could take a defence of no prejudice where there is infraction or violation of any fundamental right.

Learned Additional government Advocate urged with vehemence that cases under COFEPOSA Act, even if Section 11 of that Act is pari materia with Section 14 of the NSA, will have no application in the case of detention under NSA by virtue of Section 8 of this Act. The argument is that since Section 8 confines to the right of making representation to the appropriate Government and such Section is not to be found in COFEPOSA Act and the right for making representation thus could be confined to the appropriate Government, which, in the present case, would be State Government. Such an argument has no merit. As has been held by the Apex Court in the various decisions, as cited above, that right of a detenu is not only confined for making representation to the detaining authority, but also to the authority empowered to revoke a detention order and since under this Act power of revocation is with the Central Government, it would be in terms thereof a right of a detenu to make representation to the Central Government. The aforesaid decision also holds, this would depend upon the provision of various status. Since in this statute in addition, the right is also conferred on the Central Government as an additional safeguard to a detenu so that injustice may not perculate and in view of this special provision, it cannot be urged that right to make representation to such an authority would be barred by virtue of Section 8 of the Act. This right flows from Article 22(5) of the Constitution, which would be in addition to the right conferred by the statute u/s 8. Thus, even though there is difference between the COFEPOSA Act and this Act to the extent as urged, as aforesaid, but it would not fiddle down the constitutional obligation on the detaining authority to intimate the detenu of his right to make his representation to the Central Government. It is also empowered to revoke the detention order. An obligation is cast by virtue of Section 3(5) of the Act on the State Government that whenever detention order is approved, it shall within seven days, report this to the Central Government together with the ground on which the order has been made and such other particulars which have a bearing on the necessity for such an order.

In Giani Harendra Singh v. Siate of U.P. and Ors. 1993 LLJ 58, the Court considered such an argument as raised by learned State counsel, which was a case under the NSA and after considering Sections 3, 8 and 14 of the Act, held the right of a detenu to make representation to the Central Government by virtue of Section 14 is a constitutional right under Article 22(5). This was a case where Central Government delayed in considering the representation of the Petitioner, which was held to be violative of Article 22(5). It held:

In Rama Dhondu Borade Vs. V.K. Saraf, Commissioner of Police and Others, , it has been held that where the representation is made to the Central Government by the person detained under the National Security Act, his representation is to be considered expeditiously and disposed of with due promptitude, diligence and with a sense as urgency, as any inordinate and unexplained delay in the disposal of the representation would vitiate the detention order.

To the same effect is the decision of the Supreme Court in Aslam Ahmed Zahire Ahmed Shaik Vs. Union of India and Others, .

* * * * * 40. Learned Government, Advocate also raised a novel plea, which has since been rejected even by the apex court, that once a representation is disposed of by the State Government, the detenu has no constitutional right of getting his representation decided by the Central Government.

* * * * * 46. From the statutory provisions referred to above, it will be seen that even if an order of detention is made by the State Government, the Central Government does not remain in obscurity inasmuch as it has to be informed of the making of the order of detention as also the grounds on which it was made and has also been given the right to revoke or modify the order. Since the Central Government has been given the right to revoke or modify the detention order, it implies that a person detained has the right to approach the Central Government by proper representation. The right provided under the Act, therefore, cannot be treated as extension of constitutional right available to a detenu under Article 22(5) of making an effective representation against the order of detention.

To the similar effect is the decision as relied by learned Counsel for the Petitioner in Habeas Corpus petition No. 15614 of 1934 (Bhisham Pandey v. District Magistrate, Saharanpur and Anr.) decided on 6th August, 1985. This case is also under NSA.

In Hitendra Nath Goswami Vs. State of Assam and Others, , it was held:

It will be appropriate at this stage to examine the nature and extent of power of the Central (Govt.) contemplated in Section 14(1) read with Section 3(5), National Security Act. It is necessary to consider the general scope and the object of the Act conferring a discretionary power on the Central Government in order to find out what was intended by the Act.

In Haradhan Saha Vs. The State of West Bengal and Others, , a Constitution Bench of 5 Judges expressed the view that Section 14, Maintenance of Internal Security Act, 1971, which is in pari materia with Section 14, National Security Act, 1980, provides that without prejudice to the provisions of Section 21, General Clauses Act, 1987, detention order may at any time be revoked by the appropriate Government. The same view was also expressed by the Supreme Court in Ram Bali Rajbhar Vs. The State of West Bengal and Others, , where it was held that it is left with the Central Government in exercise of his discretion, either to exercise the power read with the provisions of Section 21, General Clauses Act, or without aid of Section 21, General Clauses Act. See also Smt. Kavita Devidasani Vs. State of Maharashtra and Others, . In Haradhan Saha Vs. The State of West Bengal and Others, , the Supreme Court observed:

Section 14 of the Act clothes the authority with the power of revoking or modifying the detention order at any time. Such a power which is for the benefit of the detenu carries with it the duty to exercise that power whenever and as soon as charge or new factors call for exercise of that power.

(Emphasis added).

In another case under the NSA in Writ Petition No. 84 (HC)/1995 (Sita Ram v. Superintendent, District Jail, Gonda and Ors.), decided in November, 1995, by Division Bench this Court also held, where opportunity to make representation to the Central Government u/s 14 of the NSA is not given, then detention of a detenu is vitiated and is illegal.

In all these catena of decisions, the law is clear that a detenu has a right to make representation not only to the detaining authority but also to the authority which is empowered under a statute to revoke such detention order and thus right is created by virtue of Article 22(5) of the Constitution to make representation to such an authority. This inevitably creates obligation on the detaining authority to intimate a detenu of such of his right to make representation to such authority. Thus where such a right is conferred by virtue of Section 11 of the COFEPOSA Act and u/s 14 of the NSA on the Central Government, inherent right is conferred on a detenu to make representation to the Central Government and obligation is cast on the detaining authority to intimate a detenu of such of his right and failure to do so infringes right of a detenu under Article 22(5) of the Constitution of India. In the present case, as Central Government is conferred with power to revoke a detention order by virtue of Section 14 of the Act, thus an obligation is cast on the detaining authorities to intimate the detenu (Petitioner) of his right to make a representation to the Central Government and if obligation not being discharged, there is violation of the right of the Petitioner under Article 22(5) of the Constitution.

Reliance on behalf of the State in the case of State of U.P. v. Zaved Zama Khan (supra) will also be of no avail. Apart from the aforesaid contrary'' decisions of the Supreme Court including the Constitution Bench case, in this decision the facts were that a detenu''s representation was duly considered and was rejected by the Central Government and due compliance of Article 22(5) of the Constitution of India and Section 8(1) was made, but subsequently the detenu made another representation through his counsel to the Prime Minister for revocation of detention order u/s 14 and it was on these facts, it was held that his detention cannot be declared invalid merely because Central Government did not apply its mind to the subsequent representation.

In view of the aforesaid legal position and (he findings arrived by us. the impugned detention order dated 31st August, 1995, u/s 3(2) of the National Security Act (Annexure-1 to the petition) is unsustainable and is, accordingly, quashed. The detenu shall be set at liberty forthwith unless required in some other case. The writ petition is accordingly, allowed with costs.