2020 (6) TMI 680 - HC - Indian Laws

Violation of Fundamental Rights - delay of 43 days by the Detaining Authority in deciding the representation of the petitioner - petitioner is in custody since 11th October, 2019 - detenues challenged the Detention Order on the ground that the Detaining Authority ought to have considered the representation without waiting for the report of the Central Advisory Board and delay in consideration of the representation violated the rights of the detenues guaranteed by the Constitution - COFEPOSA Act. HELD THAT - There is no valid explanation for non-consideration of the petitioner s representation from 06th November, 2019 to 18th December, 2019. There is no merit in the respondents explanation that they were waiting for the report of the Central Advisory Board - The delay on the part of the Detaining Authority to consider the petitioner s representation violated his constitutional rights. The issue is decided in the case of ANKIT ASHOK JALAN VERSUS UNION OF IDNIA AND ORS. 2020 (3) TMI 248 - SUPREME COURT where it was held that Once the detention order has been made by any of the authorities competent to detain in terms of Section 3 (1) of the COFEPOSA Act, the representation to seek revocation of the detention order can be considered and decided by the Detaining Authority dehors the decision of the Advisory Board and the acceptance of recommendation by the appropriate Government. The Detention Order dated 21st February, 2018 is hereby quashed and the detenue is directed to set at liberty forthwith - Petition allowed.

Issues Involved:
1. Delay in considering the petitioner’s representation.
2. Violation of fundamental rights under Articles 21 and 22(5) of the Constitution.
3. Applicability of Supreme Court judgments, particularly Ankit Ashok Jalan v. Union of India.
4. Respondents’ plea of Prospective Overruling.

Issue-wise Detailed Analysis:

1. Delay in considering the petitioner’s representation:
The petitioner challenged the Detention Order dated 21st February 2018, citing a delay of 43 days by the Detaining Authority in deciding his representation. The petitioner argued that this delay violated his fundamental rights. The Detention Order was served on 15th October 2019, and the petitioner made a representation on 5th November 2019. However, the Detaining Authority only considered and rejected the representation on 18th December 2019. The petitioner relied on the Supreme Court judgment in Ankit Ashok Jalan v. Union of India, which held that the Detaining Authority must consider the representation without waiting for the opinion of the Central Advisory Board.

2. Violation of fundamental rights under Articles 21 and 22(5) of the Constitution:
The petitioner argued that the delay violated his rights under Articles 21 and 22(5) of the Constitution. The Supreme Court in Ankit Ashok Jalan emphasized that any delay in considering the representation of a detenue without valid reasons is unconstitutional. The Detaining Authority's failure to expeditiously consider the representation resulted in a violation of the petitioner’s constitutional rights.

3. Applicability of Supreme Court judgments, particularly Ankit Ashok Jalan v. Union of India:
The petitioner relied on the Supreme Court judgment in Ankit Ashok Jalan, where it was held that the Detaining Authority must independently consider the representation without awaiting the Central Advisory Board's opinion. The respondents argued that they followed the principles laid down in Golam Biswas v. Union of India, which allowed waiting for the Advisory Board's report. However, the court found that Golam Biswas dealt with representations to the appropriate Government, not the Detaining Authority. The court concluded that the principles in Ankit Ashok Jalan applied, and the Detaining Authority should have considered the representation independently.

4. Respondents’ plea of Prospective Overruling:
The respondents argued that the principles laid down in Ankit Ashok Jalan should be applied prospectively. They cited I.C. Golaknath v. State of Punjab and Baburam v. C.C. Jacob to support their argument. However, the petitioner refuted this, stating that the plea of Prospective Overruling could only be considered by the Supreme Court. The court agreed with the petitioner, citing Sarwan Kumar v. Madan Lal Aggarwal, which held that High Courts are not competent to adjudicate on Prospective Overruling.

Findings:
The court held that the Detaining Authority was obliged to expeditiously consider the petitioner’s representation without waiting for the Central Advisory Board's opinion. The delay from 6th November 2019 to 18th December 2019 was deemed unjustified, violating the petitioner’s constitutional rights. The case was found to be squarely covered by the principles laid down in Ankit Ashok Jalan.

Conclusion:
The petition was allowed, the Detention Order dated 21st February 2018 was quashed, and the detenue was directed to be set at liberty forthwith. The court appreciated the assistance rendered by the learned counsels, who provided brief notes of submissions and video clips of their oral arguments, facilitating the court's decision-making process.

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