Lalji vs Union of India and others

M.N. Shukla, J.

The petitioner has filed this petition against his order of detention dated September 21, 1981 passed by the District Judge, Allahabad under Section 3 of the National Security Act (hereinafter referred to as the Act). The petition was filed in this Court on May 4, 1982 arraying the Union of India. State of Uttar Pradesh, the District Magistrate, Allahabad and the Superintendent. Central Jail. Naini, Allahabad as opposite parties Nos. 1, 2. 3 and 4 respectively. The opposite parties were granted time for filing their replies to this petition. Accordingly two counteraffidavits were filed on July 7, 1982, one by the District Magistrate, Allahabad and the second by an Upper Division Clerk of the U.P. Civil Secretariat, Lucknow. The Union of India also filed a counteraffidavit on July 19, 1982. The petitioner filed his rejoinder affidavit on September 1, 1982 in reply to the aforesaid counteraffidavits. A supplementary counteraffidavit was also filed on behalf of the State of Uttar Pradesh on September 16, 1982. On the same date Sri Ashok Mohiley, learned counsel representing the Union of India, filed in this Court a copy of the instructions received by him in a Telex message. As arguments were being addressed Sri Mohiley asked for further time for obtaining more detailed instructions but the learned counsel for the petitioner drew our attention to the fact that the period of detention in this case would come to an end on October 2, 1982. Hence, we did not accede to the request for further time tor filing a counteraffidavit on behalf of the Union of India.

We shall briefly state the facts which can be culled from the various affidavits filed in the case and the Telex message on which great reliance was placed on behalf of the Union of India. Although the order of detention was passed on September 21. 1981, the petitioner was actually arrested on October 3, 1981 and the order and grounds of detention were served on him the same day. Since the whole case turns on a single point, namely, the manner in which the petitioner''s representation made under Section 14 of the Act for revocation was dealt with, it is net necessary to refer to other facts. According to the revocation of his detention, one addressed to the President of India and the other to the Governor of U.P. This averment was clearly made in paragraph 18 of the petition. In his rejoinder affidavit, however, the petitioner disclosed that the representation had been sent on behalf of the petitioner by Sri Ramanand Singh, Advocate. It was urged on behalf of the opposite parties that since greater details about the person to whom and the manner in which the representations were actually despatched were not indicated clearly in the petition and had become explicit only in the rejoinder affidavit, they should be allowed to obtain more specific instructions in this regard. Accordingly we accommodated the learned counsel for the opposite parties with the result that two things were brought on record, viz., a suplementary counteraffidavit and a Telex message of the Union of India. The facts which thus emerge ultimately are that the State Government completely denied the receipt of any representation on behalf of the petitioner under Section 14 of the Act addressed to it. The case of the Union of India, however, is that the Union Government received such representation and forwarded it to the Chief Secretary, Government of Uttar Pradesh on March 31, 1982. In the supplementary counteraffidavit of the State it was added that the said representation was actually received by the State Government on June 4, 1982, Paragraph 2 of the said affidavit is significant and needs be reproduced.

"2. That the aforesaid representation dated March 27, 1982 was received in confidential Section 6 of the U.P. Secretariat after travelling in various sections on June 4, 1982. The representation was thereafter returned to Secretary to the Government of India Home Ministry on July 2, 1982."

The Telex message points out that the representation was received back by the Union Government on July 5, 1982, that on July 6, 1982 the Union Government again requested the U.P. Government to furnish parawise comments on the representation. On August 7, 1982 the U.P. Government forwarded such parawise comments to the Union Government which were received by the latter on August 13, 1982 and the representation was actually rejected on August 24, 1982 by the Union Government. A communication to that effect dated September 3, 1982 is alleged to have been made to Sri Ramanand Singh, Advocate for the petitioner. Obviously the above resume of the facts would point out glaring phases of inordinate delay, namely, March 31, 1982 to June 4, 1982 and July 5, 1982 to August 24, 1982. It will be noticed that while the first of these was caused in the gap between the despatch of the representation by the Union Government and its receipt by (be State Government, the other was the period consumed by the Union Government in disposing of the representation even after receiving it back from the State Government along with the letter''s comments.

The question, therefore, which would arise for decision is as to whether the delay in these two phases would render the detention of the petitioner illegal. Sri Girdhar Malviya, learned Addl. Government Advocate, while supporting the order of detention made by central submission: Firstly, that the representation under Section 14 of the Act was only a statutory right and not a constitutional right and hence it could not be placed on a par with a representation made under Sec. 8 of the Act against the grounds of detention contained in the order; and secondly, that at all events, even a belated consideration of the representation made under Section 14 would not vitiate the detention. It is only a total failure to dedecide a representation under Section 14 of the Act which may prove fatal to the detention order by not its dilatory consideration. There was a short and subsidiary point also urged on behalf of the opposite parties viz. that if any time was consumed in transit or over such matters with respect to which the authority disposing of the representation had no control, that time should be excluded and should not be regarded as contributory to the time alleged to be spent in disposing of the representation. In support of his submissions the learned Addl. Government Advocate principally relied on a leading authority, namely, Sat Pal v. State of Punjab and others (A.I.R. 1981 S C. 2230.). Therefore, before proceeding to deal with each one of his submissions we consider it desirable to refer to the law aid down in that decision. The facts of that case were that on May 12, 1981 a detention order was passed by the State Government of Punjab under subsection (1) of Section 3 of the COFEPOSA Act. The petitioner was arrested on June 28, 1981 and grounds of detention were served on him. On July 4. 1981 he addressed two representations, one under Article 226 of the Constitution of the State Government challenging the validity of the grounds of detention and the other under Sec. 11 of the Act for revocation of the order of detention to the Central Govt. Both representations were delivered to the Superintendent, Central Jail, Amritsar on July 6, 1981 and he forwarded them on July 7, 1981 to the State Government. On July 8, 1981 the two representations were received in the Home Department of the State Government of Punjab. On July 24, 1981 the representation addressed to the State Government was rejected by it. It was also forwarded to the Advisory Board which rejected the same on July 31, 1981 and on August 6, 1981 the State Government affirmed the detention order. As regards the representation addressed to the Central Government for revocation of the order of detention under Section 11 of the Act it was not forwarded by the State Government to the Central Government till September 23, 1981. It was received by the Central Government on September 24, 1981 and rejected by it on September 28, 1981. Thus, it was apparent that from July 8, 1981 to September 23, 1981 i.e. for a period of nearly 2� months the State Government withheld the representation meant for consideration by the Central Government and forwarded it only after the lapse of this period which remained unexplained. It was, it was ruled that so far as the Central Government finally disposed it of within four days of its receipt. In these circumstances it was ruled that so far as the Cental Government was concerned it could not be held to be guilty of inordinate delay in disposing of the representation. In our opinion the decision hi that case must be appreciated hi the context of the special facts of that case. The point which was emphasised was that a detention order could not be set aside on a purely technical ground and sometimes the delay, if any, computed in a mechanical manner might be more apparent than real. In fact, one cannot altogether exclude the possibility of a design on the part of the detenu himself to manipulate matters so that delay might occur and the charge of the faliure of the competent authorities to dispose of the representation with reasonable despatch may stand established. Sat Pal''s case (supra) for once makes a clear dent in the facile assumption that mere delay irrespective of the reasons for or the source from which it occurs is necessarily fatal to the ''validity of the detention. It was emphasised by Sen, J.

"The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technicality."

It is not the import of that decision that delay in disposing of a representation for revocation of the detention order is of no consequence. It is only as a corrective to the erroneous belief that delay per se divorced from other pertinent considerations would necessarily vitiate the order of detention. The impugned order in that case was upheld. But apart from this, the case does not support any one of the contentions raised on behalf of the opposite parties.

On an analysis of the facts thereof the ratio decidendi of Sat Pal''s case (supra) may be summed up as follows:

The making of an application to the Central Government under Section 11 of the Act is a part of the constitutional right a citizen has against his detention under a law relating to preventive detention.

The State Government has no business to withhold the representation endorsed to the Central Government for1 revocation of the order of detention under Section 11 of the Act for a period of two months and 15 days.

The right of making a representation to the detaining authority against the grounds of detention as well as the application for revocation of the order of detention under Section 11 of the Act can both be'' exercised simultaneoi''sly and must be dealt with by the appropriate authority at die same time. There is no question of any conflict of jurisdiction.

The power of revocation under Section 11 of the Act is an overriding power of the power of confirming or setting aside an order of detention under Section 8(f) of the COFEPOSA.

Such representation for revocation made to the Central Government must be disposed of by it with promptitude.

From the above resume it is clear that the delay on the part of the Union of India in dealing with a representation addressed to it for revocation cannot be explained on the ground that it was received very late by the Central Government on account of some fault of the State Governmenta factor over which the Union Government had no control.

Coming to the first point canvassed on behalf of the opposite parties, namely, that the right to make a representation for revocation is not a constitutional right we are constrained to hold that the matter is concluded by a string of decisions. If such representation is not dealt with expeditiously, then the very object of making the representation would be frustrated. It was the intention of law that the prescribed authorities should dispose of these representations in good time and, therefore, it was implicit that a constitutional right was conferred on the detenu to make a representation praying for revocation of the order of detention. Such right was clearly recognised in Smt. Raxiya Umar Bakshi v. Union of India and others (A.I.R. 1980 S.C. 1751.) in which it was held that Section 11 of the Act conferred a constitutional right on the detenu to have his representation considered by the Central Government again. It is true that the Central Government has a discretion to revoke or confirm the detention but the detenu has undoubtedly a right that his representation should be considered by the Central Government for whatever it is worth. The mere fact that the detenu had sent a copy to the Central Government does not absolve the detaining authority from the statutory duty of forwarding the representation of the detenu to the Central Government. The duty of tendering a representation for revocation was analysed in the case of Tara Chand v. State of Rajasthan and others (A.I.R. 1980 S.C. 1361.) and it was held:

"Thus when once a representation is made to the Central Government, it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Article 22(5) so as to render the detention unconstitutional and void."

In Shyam Ambalal Siroya v. Union of India and others (A.I.R. 1980 S.C. 789.) it was observed:

"It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. But it would not be justified in ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government. It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the petition, declining to order for revocation."

In Rattan Singh and another v. State of Punjab and others (A.I.R. 1982 S.C. 1.) it was observed:

"Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu''s representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must therefore be held illegal and the detenu set free."

Their Lordships of the Supreme Court relied on their earlier decision in Tara Chand v. State of Rajasthan (supra) and reiterated the dictum that inordinate delay on the part of the Central Government in considering a detenu''s representation for revocation would be in violation of Article 22(5) of the Constitution thereby rendering the detention unconstitutional. In Sabir Ahmad v. Union of India (1980(3) S.C. Cases 295.) also the detenu made a representation to the Central Government for revocation of his detention order under Section 11 which was not considered by the Central Government, The result was that the detention order was set aside and it was held that since the representation made by the detenu was ignored and left unattended for a period of about four months, the detention could not be justified as being according to the procedure prescribed by law. Thus, it admits of no doubt that a detenu enjoys a constitutional right to make a representation to the appropriate Government for revocation of the detention order and the imperative safeguards imposed on such constitutional right necessarily cast a duty on the authorities to deal with such representation with expedition and speed and through application of mind.

The contention of the opposite parties that a belated order of the Central Government rejecting the representation for revocation does not tender the detention illegal is untenable. It is a necessary concomitant of a constitutional right that it must be given effect to strictly and scrupulously and hence any procedural lapse or mishandling of a situation which has the effect of rendering such right ''bruturnfulmen'' cannot be countenanced. Ii is true that in several cases of the Supreme Court which we have refened to above such representations were actually ignored by the Central Government, yet the tenor of those pronouncements leaves no room for doubt that a speedy despatch of the representation was always insisted upon. Where such representation remained unconsidered or was disposed of after unconscionable or inordinate delay, detention was held to be illegal. The power of revocation has been held to be an overriding and supervisory power, so its purpose of providing prompt relief to the detenu can be fulfilled only when all possible delay in dealing with such representation is eschewed. It is noteworthy that in Smt Icchu Devi Choraria v. Union of India and others (S.C. 1983.) there was delay in disposing of the detenu''s representation dated June 26, 1980 for revocation of his detention. No decision was taken on this representation until July 14, 1980. On there facts it was held that the delay was not reasonably explained by the detaining authority and that was sufficient to validate the continued detention of the detenu. Likewise, in Shyam Ambalal Siroya''s case (supra) it was held that a petition for revocation of an order of detention should be disposed of with reasonable expedition. Obviously, it will be wrong to confine the dictum of these cases only to a situation in which the representation for revocation has been ignored and not decided at all. The learned Additional Government Advocate

strenuously contended before us that for the delay of about � months the responsibility could not be fixed on the State Government. It may be mentioned that in the instant case the petitioner has confined his attack to the representation addressed to the Union Government because the State Government has clearly denied the receipt of any representation" on behalf of the petitioner for revocation and there is no material on record to substantiate the factum of such representation. Sri Mohiley representing the Union Government by relying again on Sat Pal''s case (supra) sought to defend the action of the Union Government and submitted that in the present case also there was almost similar delay of approximately 2� months on the part of the State Government which remained unexplained. In our opinion the case in hand is distinguishable on facts. The decision in Sat Pals case (supra) proceeded largely on the footing that the conduct of the Central Government was wholly unimpeachable. On the other hand, in the present case the representation for revocation had been received by the Central Government on March 29, 1982. On March 31, 1982 it was forwarded by the Central Government to the U. P. Government for comments. It was received back by the Centtral Government on July 5, 1982 but the following day i.e. July 6, 1982 the Central Government against sent it back to the U.P. Government for parawise comments. As we have already mentioned, there was a categorical assertion in the writ petition that inordinate delay had been committed by the Central Government in disposing of the petitioner''s representation for revocation and yet there is no explanation on behalf of the Union Government as to why even after the receipt of the representation back from the U.P. Government on July 5, 1982 it did not proceed expeditiously to dispose of the representation. In the background of such unexplained delay this gesture on the part of the Union Government of returning the representation to the State Government for parawise comments passes comprehension. The feature which has been strongly censured by he Supreme Court in the matter of dealing with such representation with respect of detention or revocation of the same is the lethargic attitude and indifference of the Executive authorities. In Frances Coralie Mullin v. W. C. Khambra and others (A.I.R. 1980 S C. 849.) it was held that:

�Article 22(5) vests in the detenu the right to be provided with an opportunity to make a representation........It is that the principal enemy of the detenu and his right to make a representation is neither highhandedness nor meanmindedness but the casual indifference, the mindless insensibility, the routine and the ''redtape of the bureaucratic machine."

It is remarkable that in Sat Pal''s case (supra) even though the Central Government received the representation after a very long time inasmuch as it was withheld by tile State Government, yet when eventually it was received by he Central Government it was disposed of within a period of four days. In these circumstances the detention order was upheld. On the contrary, in the present case even though the representation was received back by the Union Government from the State Government on July 5, 1982, vet instead of proceeding with the same with expedition it again sent the representation back to the State Government for parawise comments. We also cannot resist the necessity of expressing our strong disapproval of this attitude of the Union Government of indefinitely waiting for comments or replies Horn the State Government. It cannot be doubted that every party must be conceded reasonable time for collecting material and obtaining instructions. Even though the Central Government can ask for such information, it cannot be justified in sleeping over the matter and allowing unconscionable delay to take place and then taking shelter under the plea that the reply from the other end was received late. Die Supreme Court has been highly critical of such dilatory procedure adopted by an authority responsible for the decision of the representation preferred by a deters. In fact, if such delay is inherent in a procedure devised by the Legislature itself that cannot pass legal scrutiny In Smt. Khatoon Begun v. Union of India find others (A.I.R. 1981 S.C. 1077.) it was emphasised:

"If the Parliament or the State Legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the interdepartmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate........ It will be no answer to a demand for liberty to say that administrative redtape ma ices delay inevitable."

Thus, it is our considered opinion that inordinate delay in the process of dealing with a detenu''s representation challenging the grounds of his detention and praying for i evocation of the detention order must be avoided and the authorities seized with that matter are under a solemn duty to eschew any such procedure as may cause delay. The sacred duty of a speedy disposal of such representation in case both in the Central Government and the State Government. They have to play their respective roles in transit, receipt and disposal of such representation. The entire procedure must be immune from all such possibilities of delay as can be foreseen. The Central Government should not wait indefinitely for the information from the State Government but it must take more effective steps for expediting the furnishing of such information. If in a case the Court finds that the Union Government has been resting on its oars after once asking for any information and has then allowed extraordinarily long time to pass, that delay cannot be condoned. Such dilatory tactics are bound to cause prejudice and curtail the fundamental liberty of a citizen. It is business of the Government to glean and ferret out all requisite information from the relevant source without allowing unnecessary delay to take place. The other aspect of the same process is that the State Government in its turn should not take any demand for information required by the Union Government in a cavalier fashion. Instances of such requisitions being ignored or dealt with in a most leisurely and dilatory manner are galore. A typical instance of such slow speed and inactivity is furnished in theanswer trotted out by the State Government in the instant case. Paragraph 2 of the Supplementary counter affidavit filed on behalf of the State reads:

"That the aforesaid representation dated March 27, 1982 was received in confidential Section 6 of the U.P. Secretariat after travelling in various Sections on June 4, 1982. The representation was thereafter returned to Secretary to Government of India Home Ministry on July 2, 1982."

This kind of reply which does not throw any light on the specific dates when the representation was actually received by the State Government but merely tries to explain it by using mystifying language is, in fact, no explanation for the delay. It only reflects the tendency of the State Government not to realise the duty of responding immediately to the demand made for information vital for disposing of the representation of a detenu with reasonable despatch. The callous indifference in dealing with the despatch of a representation against detention or for revocation of the same must be disapproved because it is bound to delay the ultimate disposal of the representation. It was observed in Saleh Mohammad v. Union of India and ethers (A.I.R 1981 S.C.):

"Here in the instant case we find that the functionaries of the State in attending to the presentation of the detenu have been guilty of gross negligence and chill indifference. For more than three weeks, the representation of the detenu remained lying unattended in the Office of the Superintendent of Jail, or the InspectorGeneral of Prisons. This inordinate, unreasonable and unwarranted delay of about 22 days amounted to violation of Article 72(5), which guarantees to the detenu a right to have his representation considered with reasonable expedition." It was on this short ground that the order of detention was quashed. Considering the conduct of the State Government in the instant case we are constrained to hold that it failed to tender the information demanded by the Union Government with reasonable promptitude and this eventually stultified the petitioner''s right of representation for revocation.

In fact, the circumstances disclosed in the present case reveal a sorry state of affairs. At the fag end Sri Ashok Mohiley representing the Union Government strenuously contended that in the first instance the representation sent by the Union Government to the State Government was received back wihout comments whatsoever and therefore the delay was caused. No such averment was made either in the counter affidavit filed on behalf of the opposite parties nor was such fact mentioned in the telex message brought on record. We cannot lose sight of the fact that the petitioner''s term of detention is to expire on October 2, 1982. Therefore, any oral information supplied at the bar cannot be entertained at this stage.

For these reasons we are of the opinion that the detention of the petitioner is illegal. Therefore, we set aside his detention order. The petitioner will be set at liberty forthwith unless required in any other case.