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TMI Blog1990 (12) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 31,1987 was issued to him under sub-section (1) of Section 6 of the SAFEMA to show cause as to why the properties mentioned in the schedule to the said notice should not be forfeited to the Central Government for reasons recorded in the accompaniment. A copy of the notice along with the schedule of the properties and the copy of the reasons for forfeiture of the property was also sent to the first respondent by letter of February 27,1989. 2. The first respondent filed the aforesaid writ petition in the High Court challenging the detention order of December 13,1985 as well as the show cause notice of March 31,1987. The High Court by its impugned decision held that the writ petition was maintainable for challenging the detention order even though the detenu was not served with the order and he had thus not surrendered to the authorities. The High Court further directed that the detention order, the grounds of detention, and the documents relied upon for passing the detention order be furnished to the detenu and that they should also be produced before the court. The High Court also directed the authorities to supply the said documents to the counsel for the first respondent. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, as the case may be, is entitled to the detention order and the grounds on which the detention order is made before the detenu submits to the order. These questions may arise for consideration also when an order forfeiting the property as a consequence of the detention order as in the present case, is passed, and when the detention order is incidentally challenged to question the validity of the order of forfeiture of the property. 6. The questions have assumed much importance because relying upon some judgments of this Court and of some of the High Courts, writ petitions are filed as a matter of course to challenge the detention orders and to obtain interim reliefs restraining the authorities from enforcing them without surrendering to them, thus frustrating the orders and defeating the very purpose of the detention law. According to the learned Additional Solicitor General appearing for the appellant-detaining authority, the number of such petitions has grown in volume recently and when, as in the present case, the authorities insist on the detenus first submitting to the order they are faced with the contempt action. It has, therefore, become necessary to review the law on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of course, meant validly enacted law and procedure. There are many facets of Article 21 but their discussion need not detain us here. The permission given to the State by Article 21 to deprive a person of his liberty according to procedure established by law is expressly controlled by Article 22 in cases both of punitive and preventive detention. In case of detention other than preventive detention, the provisions of its sub-clauses (1) and (2) apply whereas in case of preventive detention, the provisions of its sub-clauses (4) to (7) come into play. Sub-clause (1) states that when a person is arrested, he shall be informed, as soon as may be, of the grounds of his arrest and that he shall be given the right to consult and be defended by a legal practitioner of his choice. The second safeguard provided for the person is that he shall be produced before the nearest magistrate within a period of 24 hours of his arrest. These two safeguards are not available to a person who for the time being is an enemy, alien or who is arrested or detained under a preventive detention law. Needless to say that even this arrest and detention has to be according to a valid procedure established by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is according to procedure established by law made for the purpose and if both the law and the procedure laid down by it, are valid. 11. This is not to say that the jurisdiction of the High Court and the Supreme Court under Article 226 and 32 respectively has no role to play once the detention - punitive or preventive - is shown to have been made under the law so made for the purpose. This is to point out the limitations which the High Court and the Supreme Court have to observe while exercising their respective jurisdiction in such cases. These limitations are normal and well-known, and are self-imposed as a matter of prudence, propriety, policy and practice and are observed while dealing with cases under all laws. Though the Constitution does not place any restriction on these powers, the judicial decisions have evolved them over a period of years taking into consideration the nature of the right infringed or threatened to be infringed, the scope and object of the legislation or of the order or decision complained of, the need to balance the rights and interests of the individual as against those of the society, the circumstances under which and the persons by whom the jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by granting interim relief; (vii) where the satisfaction of the authority is subjective, the Court intervenes when the authority has acted under the dictates of another body or when the conclusion is arrived at by the application of a wrong test or misconstruction of a statute or it is not based on material which is of a rationally probative value and relevant to the subject matter in respect of which the authority is to satisfy itself. If again the satisfaction is arrived at by taking into consideration material which the authority properly could not, or by omitting to consider matters which it ought to have, the Court interfers with the resultant order; (viii) in proper cases the Court also intervenes when some legal or fundamental right of the individual is seriously threatened, though not actually invaded. 12. These limitations are not only equally observed by the High Court and the Supreme Court while exercising their writ jurisdiction in preventive detention matters, but in view of the object for which the detention law is enacted and is permitted by the Constitution to be enacted, the Courts are more circumspect in observing them while exercising their said extraordinary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per case, the High Court had no jurisdiction to make an interim order giving the detenu the relief which the High Court would be entitled to give him at the end of the proceeding. The Court referred to its earlier decision in Special Reference No. 1 of 1964 (supra) and pointed out that the general principle on which the observations of this Court were based in that case would apply as much to the habeas corpus proceeding commenced on behalf of the detenu detained under Rule 30 of the Defence of India Rules as to any other habeas corpus proceeding. According to the Court, the interim relief which can be granted in habeas corpus proceeding must no doubt be in aid of and auxiliary to the main relief. The Court added that it is true that in dealing with the question as to whether interim bail should be granted to the detenu, the Court would naturally take into account the special objects which are desired to be achieved by orders of detention passed under Rule 30 but, stated the Court, "We are dealing with the bare question of jurisdiction and are not concerned with the propriety or the reasonableness of any given order. Considering the question as a bare question of jurisdiction we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is justified on facts or not. The jurisdiction of the High Court to grant relief to the detenu in such proceedings is very narrow and very limited. That being so, if the High Court takes the view that prima facie, the allegations made in the writ petition disclose a serious defect in the order of detention which would justify the release of the detenu, the wiser and the more sensible and reasonable course to adopt would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay. Take the case where malafides are alleged in respect of an order of detention. It is difficult, if not impossible, for the Court to come to any conclusion, even prima facie, about the malafides alleged, unless a return is filed by the State. Just as it is not unlikely that the High Courts may come across cases where orders of detention are passed malafide, it is also not unlikely that allegations of malafides are made light-heartedly or without justification; and so, judicial approach necessarily postulates that no conclusion can be reached, even prima facie, as to malafides un less the State is given a chance to file its return and state its case in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage of the proceedings. (12) If an order of bail is made by the Court without a full trial of the issues involved merely on prima facie opinion formed by the High Court, the said order would be open to the challenge that it is the result of improper exercise of jurisdiction. It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise. Improper exercise of jurisdiction in such matters must necessarily be avoided by the Courts in dealing with applications of this character. Therefore, on the point raised by the learned Advocate-General in the present appeal, our conclusion is that in dealing with habeas corpus petitions under Art. 226 of the Constitution where orders of detention passed under R. 30 of the Rules are challenged, the High Court has jurisdiction to grant bail, but the exercise of the said jurisdiction is inevitably circumscribed by the considerations which are special to such proceedings and which have relevance to the object which is intended to be served by orders of detention properly and validly passed under the said Rules." Explaining the nature of preventive detention, this Court in Khudiram Das v. The State of W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as regards the necessity of detention for a specified purpose, the condition of exercise of the power of detention would be fulfilled. This would clearly show that the power of detention is not a quasi-judicial power.........." The Court thereafter spelt out some of the circumstances under which the detention order though passed on the basis of subjective satisfaction can be challenged. We have referred to those circumstances in paragraph 11 (vii) above. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi & Ors. [(1981) SCC 608] while dealing with the detention law, this Court held that the law of preventive detention has to pass the test not only of Art. 22 but also of Art. 21. Having regard to the distinctive character of preventive detention as apart from punitive detention, the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal. Any act which damages or injures or interferes with the use of any limb or faculty of a person either permanently or even temporarily would be within the inhibition of Art. 21. So also every act which offends against or impairs human dignity would constitute depriva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant filed a miscellaneous application in his writ petition stating, inter alia, that although the interim direction was issued in his writ petition, the detention order dated 3-6-1988 was served on him on 10-6-1988 and assailed therein the grounds of detention as vague, stale etc. and prayed for a declaration that the detention order was illegal. No specific order was passed on this miscellaneous application. The learned single judge referred the matter to the Division Bench, and the Bench dismissed the writ petition observing that as an order of detention was made even before the writ petition was filed, the prayer in the writ petition had become infructuous and there were no extraordinary or special reasons to depart from the normal rule, namely, that in such cases the detenu should first surrender and move for a writ of habeas corpus. Setting aside this order of the Division Bench of the High Court, this Court held that the writ petition was maintainable even though the detenu had not submitted to the order of detention. It is not necessary to refer to this decision on the merits of the detention order. 13. On behalf of the respondents our attention was also invited to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproaching the court is, according to the Court, to insist upon an unreasonable condition. The Court further held that the fundamental rights granted by the Constitution particularly by Articles 14,19 and 21 conferred on the person likely to be affected by such order an implicit right to approach the court at any time and the court cannot refuse relief to such person by insisting that he first surrender his liberty. To the same effect are the views expressed by the High Courts in other cases later, viz., Jayantilal Bhagwandas Shah and etc. v. State of Maharashtra [(1981) 1 Cr. LJ 767] decided by Bombay High Court; Abdul Aziz Mohammad v. Union of India [(1984) Cr. LJ 1307], Omar Ahmed Ebrahim Noormani v. Union of India & Ors. [1984 Cr. LJ 1915] both decided by Delhi High Court; Yogesh Shantilal Choksi v. Home Secretary, Government of Kerala & Anr. [(1983) Cr. LJ 393] decided by Kerala High Court and Simmi v. State of U.P. & Ors. [(1985) All. LJ 598] decided by Allahabad High Court. 15. It is also necessary to remember in this connection that judicial review of legislation or of any order passed by the administrative authorities is a part of the basic structure of the Constitution a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass the provisions of that law or invite the High Court to do so and secure the grounds before submitting to the order. Thirdly, it was urged that the detention law in question has not taken away the judicial review of the order passed under it. It is only the stage at which the order should be reviewed is by implication postponed and the Courts have done so by a self-regulated procedure consistent with the object of the law. The judicial review under the detention law has to be post-decisional firstly because it makes no distinction between a citizen and a non-citizen and secondly it is enacted to confer emergent or police powers on the State which are necessary to safeguard the interests of the general public, public order and security of the State. It was also contended in this behalf that the law by itself does not place any restriction on the writ-jurisdiction of the Court. The restriction exercised by the Court is of its own making and such an internal restraint is not inconsistent with the basic structure of the Constitution. As against this Shri Jain, appearing for the respondent contended, firstly, that Article 22 is an additional protection of liberty which is guarantee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unitive detention. Worst still, unlike the latter, it is resorted to prevent the possible misconduct in future, though the prognosis of the conduct is based on the past record of the individual. The prognosis further is the result of the subjective satisfaction of the detaining authority which is not justiciable. The risk to the liberty of the individual under our detention law as it exists is all the more aggravated because the authority entrusted with the power to detain is not directly accountable to the legislature and the people. It is to prevent the possible abuse of this draconian measure that the legislature has taken care to provide certain salutary safeguards such as (i) the obligation to furnish to the detenu the grounds of detention ordinarily within five days and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention, (ii) the right to make representation against the order of detention, (iii) the constitution of advisory board consisting of persons who are or have been qualified to be appointed as judges of the High Court, (iv) the reference of the case of the detenu to the advisory board within 5 weeks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore apprising him of the grounds of his detention, is clearly against the relevant provisions of Article 22 of the Constitution. The right to liberty protected by Article 21 has been limited by Article 22 which permits arrest for punitive and preventive detention, provided the safeguards mentioned therein are observed. The provisions of Article 22(3) (b) permit the arrest or detention of a person under any law providing for preventive detention without complying with the provisions of sub-clauses (1) and (2) of Article 22 which require that no person who is arrested shall be detained in custody, among other things, without being informed "as soon as may be" of the grounds of such arrest and that he shall not be denied the right to consult and to be defended by a legal practitioner. He shall also be required to be produced before the nearest magistrate within twenty-four hours of his arrest. Although sub-clause (5) of Article 22 also requires that the person detained under a preventive detention law would be communicated the grounds of his detention "as soon as may be", it also does not specify the maximum period within which the grounds are to be so communicated. In other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his contention requires the court to go a step further and to do something more than what it does or would do while entertaining grievances against orders passed under other laws. The justification advanced to claim this superior right is that under the detention law what is infringed is the liberty of the individual and no individual should be required to surrender it without a prior right to challenge the order in question. As has been elaborately discussed above, however vital and sacred the liberty of the individual, for reasons which need not be discussed over again here, the responsible framers of the Constitution although fully conscious of its implications have made a provision for making a law which may deprive an individual of his liberty without first disclosing to him the grounds of such deprivation. It is not, therefore, possible for us to accept the three contentions. 19. As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (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. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the pre-execution stage, though such cases have been rare. This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well-settled principles. 22. To the extent that the decision of this Court in S.M.D. Kiran Pasha v. The Government of Andhra Pradesh & Ors. [JT 1989 (4) S.C. 366] and the decisions of all the High Courts are contrary to or inconsistent with the view taken by us above, they will be deemed to have been disapproved and overruled. 23. In the present case, admittedly the proposed detenu is absconding and has been evading the service of the detention order. The first respondent who is his wife has sought to challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29th June, 1989. We propose to stand over the matter till Monday, the 3rd July, 1989 to enable the petitioner to consider as to whether any amendment of the Writ Petition is required. If any amendments are sought, sufficient time will have to be given to the respondents to file their return, although we must express our amazement once again that in a writ petition admitted on 22nd May, 1989 and made returnable within 8 weeks instructions to file return have been belatedly given after 4 weeks and that too also without the main brief." 24. As has been pointed out at the outset, after this order, the appellants took the plea that although they were willing to produce the order of detention and the grounds of detention for the perusal of the Court, they cannot furnish them to the first respondent unless, as required by the Act, the detenu first submits to the impugned order. The High Court thereupon issued the contempt notice by its order dated June 30, 1989. For the reasons discussed above, we are of the view that both the orders of the High Court directing the appellants to furnish to the detenu or to the first respondent or her counsel the order of detention, the grounds of detent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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