S. Alagarsami vs State of Tamil Nadu and Others

V. Ramaswami, J.—This is a petition for the issue of a writ of habeas corpus directing the respondents to set one Soori alias

Udayasooriyan, who has been detained under the Tamil Nadu Act 14 of 1982, at liberty.

By an order dated 2-12-1983, the Collector and District Magistrate, Madurai, in exercise of her powers under S. 3(1) of the Tamil Nadu Act

14 of 1982 directed that the said Soori alias Udayasooriyan be detained and kept in custody in the Central Prison at Madurai on the ground that it

was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of the public order. The grounds of detention

were served on 13-12-1983 (Sic). Under sub-section (3) of S. 3, the Government approved the detention order in G.O. Ms. No. 1066 P & E.

(XII) dated 9-12-1983. The detenu sent his written representation dated 24-12-1983 to the Government with copies to the District Collector,

Madurai as also the Chief Minister of Tamil Nadu. The Government received the written representation through the Jail Superintendent on 30-12-

1983. The Collector of Madurai received the representation on 28-12-1983. The Collector of Madurai in her turn seems to have forwarded the

representation to the Superintendent of Police, Madurai South on 31-12-1983 for his report. It is further stated in the counter-affidavit that the

report of the Superintendent was received by her on 9-1-1984 along with the reports of the Superintendent of Police dated 8-1-1984 and that of

the Inspector of Police dated 7-1-1984. The second respondent, Collector, in her counter affidavit further states that she translated the

representation of the detenu which was in English into Tamil and sent it to the Government along with her report and the reports of the

Superintendent of Police and the Inspector of Police on 10-1-1984. The first respondent Government in their affidavit state that the representation

of the detenu dated 24-12-1983 received on 30-12-1983 was sent to the Advisory Board on 6-1-1984 as the Advisory Board had fixed 12-1-

1984 for reviewing the case of the detenu. It may be mentioned that the report of the second respondent Collector is in Tamil. This report of the

Collector is stated to have been received on 12-1-1984. It is further stated in the counter-affidavit of the first respondent -

As the representation was in English and lengthy, it was got translated and examined with reference to the parawar remarks of the District

Magistrate and the connected file was submitted to officers on 19-1-1984"".

This statement could not be correct as the second respondent Collector in her affidavit had stated that the report of the detenu was got translated

by her before she sent her report. Be that as it may, it is further stated that the Under-Secretary passed the file on 19-1-1984 to the Deputy

Secretary and Secretary on 29-1-1984 (Sic). The Public Works Minister and the Law Minister passed orders in the file rejecting the petition on

23-1-1984 and the Chief Minister approved the proposal for rejection on 31-1-1984 and necessary orders were issued in the Government Letter

dated 1-2-1984 and the order of rejection dated 1-2-1984 was served on the detenu on 3-2-1984. It may be mentioned that in the meantime the

Advisory Board had already met on 12-1-1984 and they have also sent their opinion dated 12-1-1984 which was received by the Government on

the very day. The Government after consideration of the report of the Advisory Board in G.O. Ms. No. 120, P&E (XII) Department dated 1-2-

1984 confirmed the order of detention made by the Collector and District Magistrate, Madurai and directed that the detenu be kept in detention

for a period of 12 months from the date of his detention. It is under those circumstances, the learned counsel for the petitioner contended that the

report of the petitioner was not considered by the Government independently; that they had waited for the opinion of Advisory Board and that

there had been no independent application of the mind. In the counter filed by the Government it is stated that because the order of confirmation of

the detention as also the order of rejection of the representation are on the same date, it cannot be said that the Government had not applied its

mind independently. It is further stated that ""both the issues were examined by the Government independently and the occurrence of the same date

is only coincidence."" The facts stated above clearly disclose that either the Government was waiting for the report of the Advisory Board before

the representation was considered or there was an unreasonable delay and a non-consideration of the representation continuously and

expeditiously as required by law.

In Dr. Rahamatullah Vs. State of Bihar and Another, the order of detention under the National Security Act was made on April 30, 1981. The

detenu made his written representation against the detention on May 31, 1981. The representation was forwarded to the Advisory Board and the

report of the Advisory Board was received on 29-6-1981. After the receipt of the Advisory Board''s opinion representation was rejected on 1-7-

1981. With reference to the Constitutional obligation of an authority making an order of preventive detention to communicate the grounds of

detention and affording him an earliest opportunity of making representation against the order as provided under Article 22(5) of the Constitution,

the Supreme Court observed as follows (at P. 1700 of Cri LJ) :

This sub-art. (5) provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford him

the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The

representation, if any, submitted by the detenu is meant for consideration by the appropriate authority without any unreasonable delay, as it

involves the liberty of a citizen guaranteed by Art. 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the

representation tantamounts to non-compliance of sub-art. (5) of Art. 22 of the Constitution.

The law is well settled that in case of preventive detention of a citizen, the obligation of the appropriate Government is two-fold :

(1) to afford the detenu the opportunity to make a representation and to consider the representation which may result in the release of the detenu,

and (ii) to constitute a Board and to communicate the representation of the detenu along with other materials to the Board to enable it to form its

opinion and to obtain such opinion. The former is distinct from the latter. As there is a two-fold obligation of the appropriate Government, so there

is a two-fold right in favour of the detenu to have his representation considered by the appropriate Government and to have the representation

once again considered by the Government in the light of the circumstances of the case considered by the Board for the purpose of giving its opinion

Narendra Purshotam Umrao Vs. B.B. Gujral and Others, and Pankaj Kumar Chakrabarty and Others Vs. The State of West Bengal, .

In the instant case, the State Government did not discharge the first of the two-fold obligation and waited till the receipt of the Advisory Board''s

opinion. There was, as pointed out above, an unexplained period of twenty-four days of non-consideration of the representation. This shows there

was no independent consideration of the representation by the State Government; on the contrary they deferred its consideration till they received

the report of the Advisory Board. This is clear non-compliance of Art. 22(5) as interpreted by this Court. The order of detention is, therefore,

liable to be quashed on this ground alone.

In Harish Pahwa Vs. State of U. P. and Others, the Supreme Court observed that the representation made by a detenu has to be considered

without any delay and the Supreme Court does not look with equanimity upon the delays when the liberty of a person is concerned. The Supreme

Court further observed as follows (at p. 751 of Cri LJ) :

Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being

attended to is not the type of action, which the State is expected to take in a matter of such vital importance. We would emphasise that it is the

duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the

matter must be taken up for consideration as soon as such a representation is received and dealt with continuously unless it is absolutely necessary

to wait for some assistance in connection with it until a final decision is taken and communicated to the detenu.

Again with reference to the provisions contained under S. 13(1) of Jammu and Kashmir Public Safety Act, 1978, which is on par with the

constitutional protection conferred by Art. 22(5) of the Constitution, the Supreme Court in Vijay Kumar Vs. State of Jammu and Kashmir and

Others, emphasised the need for a continuous and expeditious consideration of the representation and observed that any slackness in this behalf

not properly explained would be denial of protection conferred by the Statute and would result in invalidation of the order.

There could therefore be no doubt that any representation made by the detenu should be continuously and expeditiously considered and disposed

of. However, we are not persuaded to hold that it shall have to be disposed of within any particular period. It will have to depend on the facts and

circumstances in each case. In fact the Supreme Court in Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral and Anr, with reference to the delay

in the disposal of the representation by the detaining authority, made the following if we may say so, pertinent observation (at p. 893 of Cri LJ) :

The learned counsel submitted that the detaining authority was under an obligation to adequately explain each day''s delay and our attention was

invited to the decisions in Pritam Nath Hoon Vs. Union of India (UOI) and Others, and in Shanker Raju Shetty v. Union of India W.P. No. 640 of

1980, D/-26-6-1980 (SC). We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the

utmost expedition but as observed by one of us in Frances Coralie Mullin Vs. W.C. Khambra and Others, . ""The time imperative can never be

absolute or obsessive"". The occasional observations made by this Court that each day''s delay in dealing with the representation, must be

adequately explained, are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula

the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable

absolutes, neither life nor law can be reduced to mere but despotic formula.

Again in Raisuddin alias Babu Tamchi Vs. State of Uttar Pradesh and Another, , the Supreme Court further observed (at p. 1787 of Cri LJ) :

In this context we consider it necessary to emphasise that the question whether the representation submitted by a detenu has been dealt with, with

all reasonable promptness and diligence is to be decided not by the application of any rigid or inflexible rule or set formula nor by a mere

arithmetical counting of dates, but by a careful scrutiny of the facts and circumstances of each case; if on such examination, it is found that there

was any remissness, indifference or avoidable delay on the part of the detaining authority/State Government in dealing with the representation, the

Court will undoubtedly treat it as a factor vitiating the continued detention of the detenu; on the other hand; if the court is satisfied that the delay

was occasioned not by any lack or diligence or promptness of attention on the part of the party concerned, but due to unavoidable circumstances

or reasons entirely beyond his control, such delay will not be treated as furnishing a ground for the grant of relief to the detenu against his continued

detention"".

The learned counsel for the petitioner has also submitted a number of other decisions. It is not necessary to multiply the decisions as the principle

governing these matters are well settled by the above decisions.

It may be seen from these judgments that there is a two-fold right in favour of the detenu to have his representation considered by the

appropriate Government and to have the representation once again considered by the Government in the light of the circumstances of the case

considered by the Board for the purpose of giving its opinion and such considerations of the representation shall be independent of each other and

if the consideration of the representation has been deferred till they receive the report of the Advisory Board, it will be a clear case of non-

compliance of Art. 22(5) of the Constitution and the detention itself will be liable to be quashed on that ground. It is also clear from the above

judgments that the Government cannot allow the representation to lie without being attended to, that it is expected to consider the representation

with utmost expedition and that the representation shall also be considered continuously and expeditiously. Any slackness in this behalf not

properly explained would amount to a denial of protection conferred on the detenu under Art. 22(5) of the Constitution and would result in

invalidation of the order.

We have set out the facts in detail which clearly show that though the Government received the representation dated 24-12-1983 through the Jail

Superintendent on 30-12-1983, from the file it does not appear that the representation was forwarded to the Collector, though in counter-affidavit

of the first respondent it is stated that it was forwarded to the Collector on 6-1-1984 calling for a report. The Government seem to have

forwarded the representation to the Advisory Board. The Collector of Madurai to whom a copy was marked seems to have considered the

representation after calling for a report from the Superintendent of Police and sent her report on 9-1-1984. The Government had done nothing

from 30-12-1983 at least till 6-1-1984. After the receipt of the report of the Collector on 12-1-1984, there was absolutely no necessity for the

Government to wait or to take any further time for consideration of the matter. What happened between 12-1-1984 and till the file was passed by

the Under Secretary on 19-1-1984 is not made clear in the affidavit. It is also seen that simultaneously both the file relating to detenu''s

representation and the file relating to Advisory Board''s report were dealt with by the same officers and on the same day. Therefore, it is

impossible to accept that the Government did not allow their mind to cloud by the opinion of the advisory Board and considered the representation

independently. The facts stated above make it absolutely clear that the Government did not consider the representation filed by the detenu from

30-12-1983 till 6-1-1984 and from 12-1-1984 to 19-1-1984 and from 23-1-1984 to 31-1-1984 nor have they considered it independently. By

forwarding it to the Advisory Board alone it is also abundantly clear that they have waited for the opinion of the Advisory Board before the

consideration of the representation.

We are, therefore, of the opinion that the Government had not considered the representation of the detenu independently and that there was

unexplained long delay and that therefore the order is vitiated. We accordingly allow the writ petition, set aside the order of the detention and

direct the respondents to set the detenu at liberty forthwith.

Writ petition allowed.