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2012 (7) TMI 377 - SC - Indian LawsChallenge of detention order at the pre-execution stage - Held that - While the detention orders could be challenged at the pre-execution stage, that such challenge could be made only after being prima facie satisfied that the five exceptions i.e. (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so had been fulfilled - this case did not fall under any of the five exceptions to enable the Court to interfere and rejected the contention that the exceptions were not exhaustive and that it is only in the five types of instances that the Courts may exercise its discretionary jurisdiction under Articles 226 and 32 of the Constitution at the pre-execution stage. Rejecting Mr. Rohatgi s contention regarding the right of a detenu to be provided with the grounds of detention prior to his arrest - Held that - That the right of a detenu to challenge his detention at the pre-execution stage on grounds other than those five exceptions mentioned therein, requires further examination - various Special Leave Petitions and the Writ Petitions be listed for final hearing.
Issues Involved
1. Whether the five exceptions enumerated in Alka Subhash Gadia's case for challenging a preventive detention order at the pre-execution stage are exhaustive or illustrative. 2. Whether the Right to Information Act, 2005, affects the grounds on which a preventive detention order can be challenged at the pre-execution stage. Detailed Analysis Issue 1: Exhaustive or Illustrative Nature of Exceptions in Alka Subhash Gadia's Case 1. Argument by Petitioners: - The petitioners argued that the five exceptions laid down in Alka Subhash Gadia's case were not exhaustive but illustrative. This was supported by the decision in Deepak Bajaj vs. State of Maharashtra, which emphasized that the power of judicial review under Articles 226 and 32 of the Constitution is part of the basic structure and cannot be restricted by judicial pronouncement or constitutional amendment. - The petitioners cited several cases, including Romesh Thappar vs. State of Madras and D.A.V. College vs. State of Punjab, to argue that judicial review is permissible even when fundamental rights are threatened. 2. Argument by Respondents: - The respondents, represented by the ASG, contended that the grounds for intervention at the pre-detention stage, as indicated in Alka Subhash Gadia's case, are exhaustive and not illustrative. This was supported by subsequent decisions, including Sayed Taher Bawamiya vs. Joint Secretary, Government of India, and Naresh Kumar Goyal vs. Union of India, which held that the exceptions in Alka Subhash Gadia's case were the only grounds for judicial interference at the pre-execution stage. 3. Court's Analysis: - The court examined the judgment in Alka Subhash Gadia's case and noted that the use of the term "viz" suggests that the five exceptions were intended to be exemplar and not exclusive. The court also referenced other cases where detention orders were struck down at the pre-execution stage on grounds not listed in Alka Subhash Gadia's case, such as the absence of a live link between the incident and the detention order and staleness. 4. Conclusion: - The court concluded that the right of a detenu to challenge his detention at the pre-execution stage on grounds other than those set out in Alka Subhash Gadia's case requires further examination. The court emphasized that judicial review powers under Articles 226 and 32 are untrammelled and cannot be restricted by judicial pronouncement. Issue 2: Impact of the Right to Information Act, 2005 1. Argument by Petitioners: - The petitioners argued that the advent of the Right to Information Act, 2005, allows a detenu to receive a copy of the grounds of detention even at the pre-execution stage. They cited instances where grounds of detention were provided under the RTI Act before the detention order was executed. 2. Argument by Respondents: - The respondents countered that the RTI Act does not override the constitutional provisions related to preventive detention. They argued that Article 22 of the Constitution, which provides for the protection against arrest and detention, stipulates that the grounds for detention are to be communicated to the detenu after his detention. 3. Court's Analysis: - The court examined Article 22 of the Constitution and concluded that the grounds for detention are to be communicated only after the person has been detained. The court also referenced Section 8 of the RTI Act, which exempts the disclosure of information that could impede the process of investigation or the apprehension of offenders. 4. Conclusion: - The court agreed with the respondents that the RTI Act does not obligate the State to provide the grounds of detention to a detenu prior to his arrest and detention. The court held that the constitutional provisions would have an overriding effect over the RTI Act in matters of preventive detention. Final Directions - The court directed that the various Special Leave Petitions and Writ Petitions be listed for final hearing and disposal on 7th August 2012. The bench was to be reconstituted for this purpose.
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