2020 (11) TMI 628 - HC - Indian Laws

Detention order - rejection of right to represent - preliminary submission of the petitioners is that before the Advisory Board, while the petitioners have been denied right to be represented through counsel, the respondent was represented through a counsel at the hearing - HELD THAT - The fundamental right of the petitioners under Article 14 of the Constitution of India stood vitiated when they were denied the right of legal representation before the Advisory Board in the light of the fact that the respondent was, indeed, represented through counsel Mr. Jitendra Mishra. Firstly, the petitioner was never put to notice that their request to be represented through counsel before the Advisory Board was ever accepted. In fact, their representation making that request was rejected on 22.7.2020. It is also evident from the additional affidavit filed by respondent nos. 1, 2 and 4 that the representation submitted on behalf of the petitioners on 6.8.2020 was not even placed before the Advisory Board for its consideration, on the ground that it was received shortly before the scheduled hearing on 7.8.2020 - this is found to be a gross violation of the petitioners right of consideration of representation by the Advisory Board. Despite having made the said representation, the same was not placed before the Board. Clearly, therefore, the fundamental right of the petitioners under Article 14 and 22 of the Constitution stood violated. Thus, the continued detention of the petitioners is without the authority of law, since the petitioners have not been afforded the right to have their case considered by the Advisory Board in terms of Section 8 of the COFEPOSA Act - detention of the petitioners, therefore, cannot be sustained, and is accordingly quashed - petition allowed.

Summary

Issues Involved:
1. Challenge to preventive detention under Section 3 of the COFEPOSA Act.
2. Denial of right to be represented through counsel before the Advisory Board.
3. Alleged violation of Article 14 and Article 22 of the Constitution of India.
4. Consideration of representation by the Advisory Board.

Issue-wise Detailed Analysis:

1. Challenge to preventive detention under Section 3 of the COFEPOSA Act:
The petitioners challenged their preventive detention under Section 3 of the COFEPOSA Act. The detention order was passed on 17.5.2019, and the petitioners surrendered on 18.6.2020. They made a representation on 3.7.2020, seeking the right to be represented through counsel before the Advisory Board, which was rejected on 22.7.2020. The Advisory Board conducted a hearing on 7.8.2020 via video conferencing but did not permit the petitioners to be represented through counsel.

2. Denial of right to be represented through counsel before the Advisory Board:
The petitioners contended that they were denied the right to be represented through counsel before the Advisory Board, while the respondents were represented by an advocate. The petitioners specifically averred in their writ petition that their request to have their counsel appear was not heeded. The counter affidavit filed by the respondents was silent on this aspect. The petitioners argued that this denial violated their right to equal treatment under Article 14 of the Constitution.

3. Alleged violation of Article 14 and Article 22 of the Constitution of India:
The petitioners argued that their fundamental rights under Articles 14 and 22 were violated due to the denial of legal representation before the Advisory Board. The court noted that the respondents were indeed represented through counsel, which created a disparity in treatment. The court held that the petitioners' fundamental rights were violated as they were not afforded the same opportunity for legal representation.

4. Consideration of representation by the Advisory Board:
The court found that the representation submitted by the petitioners on 6.8.2020 was not placed before the Advisory Board for consideration. The respondents admitted that the representation was received shortly before the scheduled hearing on 7.8.2020 and was not considered. The court deemed this a gross violation of the petitioners' right to have their representation considered by the Advisory Board.

Conclusion:
The court concluded that the continued detention of the petitioners was without the authority of law. The petitioners' right to have their case considered by the Advisory Board in terms of Section 8 of the COFEPOSA Act was not afforded. Consequently, the court quashed the detention of the petitioners and disposed of the writ petition.