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Judgment
1.This is an application under Article 226 of the Constitution of India wherein an order of the District Magistrate, Imphal East District, Manipur, made under Sub-section (2) of Section 3 of the National Security Act, 1980 read with Sub-section (3) of the said Act, detaining Shri Salem Jiten Singh, is assailed.
2.This Court by order dated 16.7.99, issued Rule, made the same returnable within six weeks. At the time of issuing Rule, Mr. A. Nilamani Singh, learned Senior Counsel for the detenu, prayed for a direction for granting parole on the basis of recommendation of the State Medical Board and a week''s time was granted to the Respondents to consider the matter. The authorities after considering the application of the detenu for parole, turned down the same. The matter thereafter was put up before the Court on 26.7.99. On that day, this Court declined to pass any order on the matter of parole and ordered the Government Advocate to produce the records relating to detention of the detenu to consider the parole matter by 30.7.99. The matter was thus posted before us today.
Mr. A. Nilamani Singh, learned Senior Counsel, stressed on the deteriorating health condition of the detenu and submitted that the facts and situations demand for a direction on the authorities to enlarge the detenu on parole to enable the family members, friends and well-wishers of the detenu for making appropriate arrangements for his treatment in the CMC Hospital at Vellore as recommended by the State Medical Board. Mr. A. Nilamani Singh, learned Senior Counsel, further submitted that continued detention of the detenu is illegal on the face of the proven Breach of Clause 5 of Article 22 of the Constitution. The learned senior Counsel, appearing on behalf of the detenu, submitted that the representation of the detenu dated 14th of June, 1999 remained unattended for about fortysix days and on that ground alone, the detenu is entitled to be freed.
4.We have given our anxious consideration on this aspect. From the records it appears that the State Government considered the prayer of the detenu for parole and on due deliberation, did not find any justification for releasing the detenu on parole. The appropriate Government is armed with the power of temporary release of a detenu u/s 15 of the Act, 1980. It is essentially an executive function. No illegality is discerned in the order of rejection as such requiring interference from the Court.
5.From the records, it further transpires that the State Government took active steps for providing medical treatment to the detenu at the CMC Hospital, Vellore as recommended by the State Medical Board. In these circumstances, we do not find any justification for judicial review on this subject. However, since the records are made available, we feel it to be our duty to go into the limited question of the allegation pertaining to infringement of the right of the detenu as guaranteed under Article 22(5) of the Constitution of India.
Mr. Kh. Nimaichand, learned Govt. Advocate, however, submitted that the representation of the detenu was duly considered and rejected on 16.6.99, which was duly communicated to the detenu. Mr. A. Nilamani Singh, learned senior Counsel, submitted that the representation dated 3.6.99 was a representation praying for granting of parole or release of the detenu before the grounds of detention were served on the detenu. Admittedly, grounds of detention was served on 7.6.99 and after the grounds of detention were furnished, the detenu submitted two representations on 14.6.99, one addressed to the Secretary to the Govt. of India, Ministry of Home Affairs (Department of Internal Security), North Block, New Delhi and Anr. to the Chairman, Advisory Board of National Security Act, Imphal, Manipur, through the Superintendent, Manipur Central Jail, Imphal. According to the learned Government Advocate, the State Government duly attended to the representation of the detenu addressed to the Government of India, Ministry of Home Affairs (Department of Internal Security), North Block, New Delhi. As a matter of fact, the concerned authorities were made aware of the said representation and sought their parawise comments on the representation sent to the Government of India.
From the records of the State Government, it transpires that the representation dated 14.6.99 along with the parawise comments was forwarded to the Central Government on 30.6.99 and the Central Government after processing the same, finally disposed of the representation on 14.7.99 by rejecting the same, which information was received by the State Government on 16.7.99.
As regards the representation addressed to the Chairman, Advisory Board of the National Security Act, Imphal, Manipur, the said representation was duly forwarded to the Advisory Board and the Advisory Board considered the same. The learned Government Advocate submitted that since the representation was not addressed to the State Government, there was no scope for the State Government to attend to the said representation addressed to the Advisory Board. According to the learned Govt. Advocate the representations were addressed to the Chairman, Advisory Board and in the absence of any other representation, there was no occasion for the State Government to consider and, therefore, the question of the breach of the Article 22(5) in such situation does not arise.
Mr. A. Nilamani Singh, learned senior Counsel, submitted that Article 22(5) confer a right on the detenu to submit a representation and get his representation duly considered and disposed of at the earliest instance. The detenu was in Jail and he submitted his representation to the Jail authorities and the Jail authorities routed the said representation through the State Government. When that representation was received by the State Government, the State Government was duty-bound to dispose of the said representation, submitted the learned senior Counsel.
Article 22(5) of the Constitution speaks that when a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Communication of the grounds as well as affording of opportunity of making a representation is an essential feature ingrained in Article 22(5) of the Constitution.
As alluded earlier that the first representation dated 3.6.99, was submitted before the grounds of detention were furnished to the detenu. The grounds of detention were communicated to the detenu on 7.6.99. The detenue submitted a lengthy representation detailing the facts situations on receipt of the grounds on fresh materials which required consideration. The detenu was in Jail. He submitted two representations to two different authorities. But both the representations were routed through the State Government. When the State Government received the representations, it was incumbent upon the State Government/Authorities to dispose of the said representations. Forwarding the representation to the Advisory Board, did relieve the State Government from discharging its Constitutional and legal obligation to consider the representations as soon as it received the same. In Kubic Dariusz v. Union of India, reported in 1990 SC 605, the Hon''ble Supreme Court held that:
... though the representation was addressed to the Chairman, Central Advisory Board, the same was forwarded by the Jail authorities and it must be taken to have been a representation to the appropriate Government which was to consider it before placing it before the Advisory Board and the same having not been done Article 22(5) has to be field to have been violated.
Similarly, in Smt. Gracy Vs. State of Kerala and another, the detenu addressed the representation to the Advisory Board and it was not considered by the Central Government. It was urged by the Central Government in the above case that it was addressed to the Advisory Board and not to the Central Government, there was no obligation on the Central Government to consider the same independently. Addressing the said contention, the Supreme Court made the following observation:
The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.
The aforesaid two decisions are referred to and relied in Moosa Husein Sanghar Vs. State of Gujarat and others, The Supreme Court observed that the contents of Article 22(5) of the Constitution as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of his detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact as to whether the representation is addressed to the detaining authority or to the Advisory Board or to both. That the mode of address was only a matter of form which could not whittle down the requirement of the Constitutional mandate in Article 22(5) enacted to provide safeguard to the detenu in case of preventive detention.
From the records, it transpires that the State Government was satisfied by only sending the above two representations to the respective authorities to whom the representations were addressed without considering the said representations independently. The representations of the detenu, therefore, remained unattended by the State Government till today. The Constitutional imperatives demand for an expeditious disposal of the representant(s) having regard to the Constitutional safeguards guaranteed in Article 22(5) of the Constitution of India for protection of the personal liberty enjoined in Article 21 of the Constitution of India. Article 21 of the Constitution of India guaranteed right to life and personal liberty, which cast a duty on the State to safeguard that liberty. A representation of the detenu is not a mere document, but it is also relatable to the liberty of an individual, the preferred human rights enshrined in the Constitution of India. Article 22(5) thus created a Constitutional obligation on the authority to consider such a representation with utmost despatch. The words "as soon as may be" indicated in Clause 5 of Article 22 of the Constitution, speak of the great concern of the framers of the Constitution for expeditious disposal of a representation. Indifferent attitude or for that matter indolence in considering the representation goes counter to the obligation created by the Constitution. The legal and the Constitutional obligation was consistently reminded by the Supreme Court in a number of decisions.
All the circumstances set out above, unerringly point to the infraction of the Constitutional right of the detenu guaranteed under Article 22(5) in view of the fact that the representation of the detenu remained unattended. Under these circumstances, we, therefore, hold that the continued detention of the detenu, Shri Salam Jiten Singh, can no longer be justified, and accordingly, we order for release of the detenu forthwith, unless (sic)quired in connection with any other case.
The writ petition is accordingly allowed.