Lala Paite vs State of Manipur and Others

D.N. Chowdhury, J.—In this Habeas Corpus petition, the Petitioner has assailed the detention order dated 5th November, 1998 passed by the District Magistrate, Imphal East District, Manipur detaining the detenu, Mr. Yangminthang Haokip alias Thangboi alias Wilson, son of late Lalkholun Haokip of Nungmanbi village, P.S. Saikul, Senapati district. By the aforesaid order dated 5.11.98, the detenu was ordered to be detained by the District Magistrate, Imphal East District in exercise of the powers u/s 3(2) and 3(3) of the National Security Act, 1980 which is under challenge in this petition.

In the Habeas Corpus petition though numerous grounds are taken by the Petitioner questioning the order of detention, the learned senior Counsel, Mr. N. Kerani Singh, appearing on behalf of the Petitioner mainly emphasised on the point of delay in disposing of the representation filed by the detenu before the concerned appropriate authority. The order of detention, as mentioned earlier, was passed on 5.11.98 when the detenu was in prison in connection with FIR No. 322(8)98 of the Imphal Police Station under Sections 121/121-A/400/212 IPC read with Section 13 of the U.A. (P) Act and 25(1-B) of the Arms Act. The grounds of detention was furnished to the detenu on 7.11.98. By the said communication, the detenu was informed about his right to submit representation against the order of detention before the Central Government and the State Government. The detention order was approved by the State Government on 16.11.98. While the detenu was in Jail, he submitted representations on 25.11.98 one addressed to the Secretary to the Govt. of India, Ministry of Home Affairs, Department of Internal Security, and Anr. to the Chief Secretary to the Govt. of Manipur. The order of detention was confirmed by the State Government on 14.12.98. According to the learned Counsel for the Petitioner, the representation dated 25.11.98 addressed to the State Government was disposed by the State Government on 1.12.98.

An affidavit was filed on behalf of Respondents Nos. 1 and 2 through the Deputy Secretary to the Govt. of Manipur, Department of Home Affairs. From the affidavit, it transpires that the representation dated 25.11.98, was rejected on 2.12.98 and the order was issued on 3.12.98. However, from the records placed before us by the learned Govt. Advocate, Manipur, it appears that the representation dated 25.11.98 was in fact disposed on 1.12.98.

We have gone through the records and from the records it transpires that the appropriate authority took the decision to dispose of the representation on 1st of December, 1998 itself. Whether the representation was disposed of on 2.12.98 or on 1.12.98, is not material so far as the State Government is concerned since we do not find any undue delay on the part of the State Government in disposal of the representation of the detenu.

Mr. N. Kerani Singh, the learned senior Counsel for the Petitioner, however, seriously assailed the sluggishness of the Central Government in the disposal of the representation of the detenu. The learned senior Counsel submitted that the detenu sent representation to the Central Government. The State Government in its affidavit has confirmed that the representation submitted by the Petitioner to the Central Government was forwarded to the Central Government on 27.11.98 by Speed Post. The fact that it took the Central Government about twentynine days, according to the learned senior Counsel for the Petitioner, itself is violative of Article 22(5) of the Constitution.

Mr. N. Ibotombi Singh, the learned Counsel appearing on behalf of the Central Government, on the other hand, denied and disputed and contentions raised by Mr. N. Kerani Singh, learned senior Counsel for the Petitioner. Mr. N. Ibotombi Singh, the learned CGSC referring to the affidavit filed on behalf of the Central Government by the Under-Secretary to the Govt. of India, Ministry of Home Affairs, submitted that the Representation dated 25.11.98 preferred by the detenu was received by the Central Government on 7.12.98 through the State Government of Manipur. The representation was processed for consideration and at that stage it was found that certain vital information required for further consideration was needed from the State Government and accordingly a WT Message was sent to the State Government for furnishing the aforesaid information. The afforsaid information was received by the Central Government on 15.12.98 vide the State Government''s letter dated 8.12.98. That on receiving the information on 15.12.98, the case of the detenue was put up before the Director concerned in the Ministry of Home Affairs on 17.12.98, who on consideration of the same, made comments thereon and put it up before the Joint Secretary on 17.12.98 alongwith his comments. The Joint Secretary in his turn put up the representation of the detenu with his own comments thereon before the Home Minister, Government of India, on 18.12.98, who on consideration of the representation, rejected the same on 26.12.98.

In support of his contentions, Mr. N.I. Singh, learned CGSC, referred to the decisions of the Supreme Court in Sri Ram Skukrya Mhatre Vs. R.D. Tyagi and Others, of the Allahabad High Court in Tarik Mashkur Vs. State of U.P. and Others, and the decision in Thouneojam Lukhoi Singh v. District Magistrate and two Ors. reported in (1997) 1 GLR 115.

From the facts narrated above, it appears that the representation of the detenu dated 25.11.98, was disposed by the Central Government finally on 26.12.98. The National Security Act provides for passing of an order of detention of preventive nature in certain cases. The National Security Act as well as the Constitution of India provides some procedural safeguards to such detenus against whom detention order(s) is/are passed. Article 22(5) of the Constitution enjoins that when a person is detained in pursuance of an order made under law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds basing on which the detention order has been made and shall afford him the earliest opportunity to make a representation against the order. Any detention effects the liberty of a citizen and in that view of the matter, an obligation is cast on the detaining authority to communicate to such person the grounds of detention with utmost dispatch and afford him the earliest opportunity of making a representation against such order. The Constitutional safeguard extends to the consideration of the representation of a detenu as soon as received. The Constitution has not indicated as to any time frame, but at the same time, it expresses its concern to provide opportunity to such persons for representing against such orders at the earliest instance. It is a procedural protection which is required to be assiduously followed. A representation of a detenu for release from detention against inappropriate and unjustified exercise of power of detention requires early disposal and that is the concern showed in Article 22(5) of the Constitution. No hard and fast rule can be pronounced. Nonetheless, it envisions for expeditious disposal of the representation filed by a detenu. The time frame is not the consideration, the consideration is as to the concern that is shown by the authority in dealing with the liberty of a citizen. A representation that is sent by a detenu from Jail requires expeditious consideration. There may be valid ground for non-disposal of the representation, but those must be adequately explained.

On the own showing of the Central Government in its affidavit, the representation of the detenu dated 25.11.98, was received in the Ministry of Home Affairs, Govt. of India, on 7.12.98. On 9.12.98, it sent a crash message to the State Government that the representation did not contain certain vital information (emphasis given). What was the vital information was not indicated by the Central Government, nor were the records produced. However, from the records of the State Government, it transpires that by the crash message dated 9.12.98, the Central Government sought para-wise comments from the State Government as also the report of the Advisory Board. There could not have been any valid justification for delaying the disposal of the representation for a report of the Advisory Board for disposal of a representation under Article 22(5) of the Constitution is different from that of a decision of the Advisory Board. On their own showing, the Central Government received those vital information, as indicated above, on 15.12.98. It took two days for the representation to reach the table of the Director in the Ministry of Home Affairs and after the matter was processed by the Director, it reached the table of the Joint Secretary, Ministry of Home Affairs, on 17.12.98. The Joint Secretary deliberated on the matter and with his comments, sent it to the Home Minister on 18.12.98 which was finally disposed on 26.12.98 by the Government. No valid reason so far is furnished by the Central Government for sitting over the matter relating to the liberty of a citizen for those days. On the own showing of the Central Government in its affidavit, the matter was put up before the Home Minister, Govt. of India on 18.12.98 and it took eight days for the concerned authority to dispose of the representation. There is no explanation as to why the representation could not be disposed prior to it. Even a five days'' delay in keeping a. representation in the table of the concerned Minister was held to be fatal by the Supreme Court in the case of Mrs. U. Vijayalakshmi Vs. State of Tamil Nadu and another, the relevant extract of which is quoted below:

We have perused the stages through which the file containing the representation was dealt with promptly and there was no indifference lethargy of negligence in dealing with the same. The file was not unnecessarily held up at any level but moved from level to level promptly. We are, therefore, satisfied that the explanation tendered by the Deputy Secretary in this behalf is acceptable and does not betray any lack of sense or urgency in dealing with the representation. We, therefore, do not see any merit in the first contention. In the present case, however, there is no explanation forthcoming as to why the representation could not be dealt with by the Minister concerned from 9.2.1998 to 14.2.1998.

The above decision of the Supreme Court was referred and relied upon by the Supreme Court in the case of Rajammal Vs. State of Tamil Nadu and Another,

A right to make representation is not only a Statutory right under the National Security Act, it is a Constitutional rights as well. The words "as soon as may be" as enjoined in Article 22(5) of the Constitution reflects the concern of the makers of the Constitution for individual liberty which made in incumbent on the authority to Act with promptitude, diligence and responsibility without the least possible delay. Expeditious disposition is the rule and delay in disposal defeats the mandate of Article 22(5) of the Constitution. Therefore, the authority is obliged to explain every day''s delay. The framers of the Constitution being alive to the fact that preventive detention involves serious inroads on the right of personal liberty, took care in incorporating Clauses 4 and 5 in Article 22 of the Constitution and provided the minimal safeguards for the protection of persons sought to be detained on preventive ground. Its rigours cannot be softened on the basis of the nature of the activities of a particular person. In this connection, we may recall the following observations made by Hon''ble Mr. Justice K.K. Mathew in the case of Prabhu Dayal Deorah Vs. The District Magistrate, Kamrup and Others, which reads as follows:

The facts of the cases might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measures to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say and we think it necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law....

As indicated earlier, in this case, no reason of whatsoever manner was shown as to why it took so much of time to dispose of the representation relating to detention of preventive nature. We, are, therefore, of the opinion that the unexplained delay in disposal of the representation vitiated further detention of the detenu and thus, we are of the view that further detention of the detenu, Mr. Yangminthang Haokip @ Thangboi @ Wilson, cannot be allowed. We, therefore, allow the Habeas Corpus petition and other release of the above-named detenu unless he is required to be detained in connected with any other case.