1985 (7) TMI 379 - HC - Indian Laws

Summary

Issues Involved:
1. Interpretation of Articles 22 and 141 of the Constitution.
2. Interpretation of Section 12(1) of the National Security Act, 1980.
3. Breach of Constitutional mandates under Articles 14 and 22.
4. The role of legal practitioners and advisors before the Advisory Board.
5. Mechanical application of mind by the State Government in confirming detention orders.

Issue-wise Detailed Analysis:

1. Interpretation of Articles 22 and 141 of the Constitution:
The judgment addresses the constitutional mandates of Articles 22 and 141. Article 22(5) grants the detenu the right to make an effective representation against the order of preventive detention. The Court emphasized that this representation must be considered fairly, justly, and with utmost expedition at both the Government and Advisory Board levels. The Court cited several precedents, including Rattan Singh and A.K. Roy, to underline the judiciary's role in safeguarding these rights against abuse.

2. Interpretation of Section 12(1) of the National Security Act, 1980:
Section 12(1) allows the appropriate Government to confirm a detention order and continue the detention for such period as it thinks fit, upon receiving the Advisory Board's report. The Court held that this power must be exercised with due consideration of relevant circumstances and not mechanically. The decision in A.K. Roy was pivotal, emphasizing that the confirmation of detention must not partake the character of punitive detention and must be based on necessity and relevant circumstances at the time of confirmation.

3. Breach of Constitutional Mandates under Articles 14 and 22:
The Court found a breach of Articles 14 and 22 in both cases. The detaining authority was allowed to be represented by legally qualified persons (Assistant Public Prosecutors), while the detenus were not given a similar opportunity. This unequal treatment was deemed a violation of Article 14, which ensures equality before the law. The Court also held that denying the detenus the right to be represented by a legal practitioner or advisor before the Advisory Board violated Article 22(5), which mandates a reasonable opportunity to make an effective representation.

4. The Role of Legal Practitioners and Advisors before the Advisory Board:
The Court reiterated the principle from A.K. Roy that if the detaining authority or Government is represented by a legal practitioner or advisor before the Advisory Board, the detenu must also be allowed similar representation. The appearance of Assistant Public Prosecutors before the Board without allowing the detenus similar representation was held to be unconstitutional. The Court clarified that Section 11(1) of the Act, which allows the Board to call for information from any person, does not confer a right on the detaining authority or Government to be represented before the Board unless it is in relation to information called by the Board.

5. Mechanical Application of Mind by the State Government in Confirming Detention Orders:
The Court found that the State Government mechanically confirmed the detention orders for the maximum period of twelve months without considering relevant circumstances or the necessity of such extended detention. The records showed a lack of application of mind, with notations merely approving the maximum period without any substantive reasoning. This mechanical exercise of power was deemed unconstitutional and void.

Conclusion:
The petitions were allowed, and the continued detention of the petitioners was declared unconstitutional and void. The Court directed that the petitioners be set at liberty forthwith if not required in connection with any other case. The judgment underscores the importance of adhering to constitutional safeguards and ensuring that preventive detention does not become punitive.