1969 (5) TMI 56 - SC - Indian Laws

Whether there is on the appropriate Government the obligation to consider the representation made by a detenue? Whether it makes any difference where such a representation is made after the detenue s case is referred to the Advisory Board? Held that - The petitioners had a constitutional right and there was on the State Government a corresponding constitutional obligation to consider their representations irrespective of whether they were made before or after their cases were referred to the Advisory Board and that not having been done the order of detention against them cannot be sustained. In this view it is not necessary for us to examine the other objections raised against these orders. The petition is therefore allowed the orders of detention against petitioners 15 and 36 are set aside and we direct that they should be set at liberty forthwith.

Summary

Issues Involved:
1. Obligation of the appropriate Government to consider the representation made by a detenue.
2. Impact of the timing of the representation on the obligation of the Government to consider it.

Detailed Analysis:

1. Obligation of the Appropriate Government to Consider the Representation Made by a Detenue:

The judgment addresses whether there is an obligation on the appropriate Government to consider the representation made by a detenue under the Preventive Detention Act. The court referenced the case of Sk. Abdul Karim & Ors. v. State of West Bengal, which established that a person detained under the Act has the right to be furnished with the grounds for his detention and the right to make a representation against the order for his detention. The court further held that although Article 22(5) does not explicitly state to whom the representation should be made and how it should be dealt with, there is an implied obligation on the part of the appropriate Government to consider it.

The court emphasized that the setting up of an advisory board under Section 8 of the Act does not relieve the appropriate Government from its obligation to consider the representation as soon as it is received. The constitutional right to make a representation guaranteed by Article 22(5) includes the constitutional right to a consideration of the representation by the detaining authority. The court highlighted that the power of preventive detention is recognized by the Constitution as a necessary evil, hedged in by procedural safeguards to minimize the danger of its misuse.

2. Impact of the Timing of the Representation on the Obligation of the Government to Consider It:

The court examined whether the obligation to consider a representation by the appropriate Government is affected by the timing of the representation, specifically if it is made after the detenue's case is referred to the Advisory Board. The court held that the obligation of the appropriate Government to consider the representation is distinct from its obligation to constitute an advisory board and obtain its opinion. The court stated that there is a dual obligation on the appropriate Government and a dual right in favor of the detenue: (1) to have his representation considered by the appropriate Government, and (2) to have that representation considered by the advisory board before it gives its opinion.

The court concluded that the appropriate Government must consider the representation irrespective of whether it was made before or after the case was referred to the Advisory Board. The court found that the State Government's failure to consider the representations of the petitioners, merely passing them on to the Advisory Board, was a violation of their constitutional rights.

Conclusion:

The court allowed the petition, set aside the orders of detention against the petitioners, and directed their immediate release. The judgment reaffirmed the constitutional obligation of the appropriate Government to consider representations made by detenues, irrespective of the timing of such representations, and emphasized the procedural safeguards intended to prevent the misuse of preventive detention powers.