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TMI Blog2012 (7) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Writ Petition Criminal No. 137 OF 2011 - - - Dated:- 10-7-2012 - Altamas Kabir, Gyan Sudha Misra And J Chelameswar JJ., Appellants Rep by: Mr. Mukul Rohtagi , Sr. Adv. In WP(Crl .)35/11 Mr. Sujay N.Kantawala, Adv. SLP (Crl)2442/12 Mr. Saurabh Kirpal, Adv. Mr. Sanjay Agarwal , Adv. Mr. Karan Bharioke , Adv. Mr. Rakesh Dahiya , Adv. Mr. Mukul Rohtagi, Sr. Adv. In WP(Crl .)11/12 Mr. Sujay N.Kantawala, Adv. 14/12 Mr. Saurabh Kirpal , Adv. Mr. G.K . Sarkar, Adv. Ms. Malabika Sarkar, Adv. Mr. D.Mahesh Babu, AOR. 34 Mr. V.K . Bali, Sr. Adv. In SLP (Crl .)2091- Mr. Sujay N.Kantawala , Adv. 92/12 Mr. Saurabh Kirpal, Adv. Mr. Sanjay Agarwal, Adv. Mr. Nikhil Jain, AOR. Mr. Ravindra Keshavrao Adsure,AOR . In WP(Crl .)142/11 Mr. Vikram Chaudhri, Adv. Mr. Nikhil Jain, AOR. Mr. Gagandeep Sharma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that since Article 32 was included in Part III of the Constitution and was in itself a fundamental right, the exercise of jurisdiction thereunder by this Court could not be affected and/or restricted by the decision rendered in Alka Subhash Gadia's case (supra). Learned counsel urged that it was also inconceivable that by a judicial pronouncement, the jurisdiction of this Court to interfere with detention orders at a pre-execution stage only could be restricted to the five exceptions mentioned in Alka Subhash Gadia's case (supra) only, for all times to come. 5. Tracing the history of the powers exercised by this Court under Article 32 of the Constitution, Mr. Rohatgi firstly referred to the decision rendered by this Court in the case of Romesh Thappar vs. State of Madras [(1950) SCR 594], wherein it was observed that Article 32 provides a guaranteed remedy for the enforcement of the rights under Part III of the Constitution and this remedial right has itself been made a fundamental right by being included in Part III. Mr. Rohatgi then referred to the decision of this Court in D.A.V . College vs. State of Punjab [(1972) 2 SCC 269], wherein in paragraph 44, this Court observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein. 6. In support of his submission that circumstances had substantially changed on account of the advent of information technology, Mr. Rohatgi submitted that this Court had occasion to consider the challenge against orders of preventive detention on grounds outside those indicated in Alka Subhash Gadia's case (supra), wherein this Court had intervened and quashed the orders of detention on grounds, other than those indicated in Alka Subhash Gadia's case (supra). 7. In this connection, Mr. Rohatgi firstly referred to the decision of this Court in Rajinder Arora vs. Union of India [(2006) 4 SCC 796], wherein this Court had held that the delay in passing of a detention order, without any explanation for such delay, was sufficient ground to set aside the detention order made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Of course, it must be said that while quashing the detention order, Their Lordships related the facts of the said case with grounds 3 and 4 of the decision in Alka Subhash Gadia's case (supra). Reference was thereafter made by Mr. Rohatgi to a Three-Judge Bench decision of this Court, in which two of us (Altamas K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offenders. Mr. Rohatgi submitted that it is obvious that the said provisions were confined to persons who are offenders and not detenus under a preventive detention law, who could not under the detention order be said to be an offender. Mr. Rohatgi urged that the only other restriction was under Section 24, wherein certain security and intelligence agencies of the Government have been exempted from the provisions of the Act. Learned counsel urged that under the first proviso to Section 24, information relating to human rights cannot be denied to the person seeking information since human rights had been defined in Section 2(e) of the Protection of Human Rights Act as being rights relating to life, liberty, equality and dignity, guaranteed by the Constitution. Mr. Rohatgi contended that the illegal detention would also amount to violation of human rights. 10. Mr. Rohatgi submitted that the Right to Information Act was not in existence, when decisions were rendered by this Court in Alka Subhash Gadia's case (supra) as also in the case of Sayed Taher Bawamiya vs. Joint Secretary, Government of India [(2000) 8 SCC 630] and in the case of Union of India vs. Atam Prakash Anr . [2009) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptions ultimately culled out in paragraph 30 of the judgment, various other situations entertaining a petition for quashing of detention order have also been indicated. Mr. Adsure also referred to the decisions of this Court in (i) Alpesh Navinchandra Shah vs. State of Maharashtra [(2007) 2 SCC 777]; (ii) State of Maharashtra vs. Bhaurao Punjabrao Gawande [(2008) 3 SCC 613]; and (iii) Rekha vs. State of Tamil Nadu [(2011) 5 SCC 244], wherein the detention orders were set aside on the ground that the purpose for issuance of a detention order is to prevent the detenu from continuing his prejudicial activities for a period of one year, but not to punish him for something done in the remote past. Mr. Adsure contended that the very concept of preventive detention is to prevent a person from indulging in activities which were prejudicial to the State and society. However, there would have to be a nexus between the detention order and the alleged offence in respect whereof he was to be detained and in the absence of a live link between the two, the detention order could not be defended. 13. On the same lines, Mr. Adsure referred to the decision in Rekha's case (supra), wherein this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions made by the learned ASG was centered around the decision in Sayed Taher Bawamiya's case (supra) and he tried to make a distinction between the same and the decision in Deepak Bajaj's case (supra), which the learned ASG pointed out, was a decision of two Judges of this Court. Even with regard to the decision in Rajinder Arora's case (supra), the learned ASG pointed out that the decision was based on ground nos.3 and 4 of the decision in Alka Subhash Gadia's case (supra). 16. As to the decision in Rekha's case (supra), the learned ASG pointed out that this was not a case of pre-detention, but a criminal appeal in which the orders of detention had been challenged. The learned ASG submitted that since the challenge was not at the pre-execution stage, the judgment in Rekha's case was not relevant in deciding the issue involved in this case. 17. As to the other decisions cited on behalf of the Petitioners, such as in Romesh Thappar's case (supra) and in K.K. Kochunni's case (supra), the learned ASG submitted that the said decisions relate to the width and scope of Articles 19 and 21 of the Constitution and there was no challenge therein that the decision in Alka Subhash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order has been made, as quickly as possible, in order to afford him the earliest opportunity of making a representation against such order. The learned ASG submitted that detention or arrest was a pre-condition for service of the grounds of detention and it is only after such detention or arrest that a detenu could ask for a copy of the grounds of detention. The learned ASG submitted that the constitutional provisions would have an overriding effect over the Right to Information Act, and, accordingly, the submissions made both by Mr. Rohtagi and Mr. Adsure with regard to the right of a detenu to ask for grounds of detention under the R.T.I . Act was without any substance and was liable to be rejected. The learned ASG submitted that both the grounds raised on behalf of the Petitioners, as preliminary grounds, were not valid and were liable to be rejected. 20. On the other question as to whether the R.T.I . Act applies in cases of preventive detention, we are unable to accept the submissions made by Mr. Rohatgi . Article 22 of the Constitution provides for protection against arrest and detention in certain cases. Clauses (1) and (2) of Article 22 set out the manner in which a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an exemption from disclosure of information. While setting out the instances in which there would be no obligation to give any citizen information in the situations enumerated in Sub-Section (1), Sub-Section (2) provides that notwithstanding anything in the Official Secrets Act, 1923, nor any of the exemptions permissible in accordance with Sub-Section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. There are two instances, which one can think of among the exemptions identified in Sub-Section (1), of which one is the exemption indicated in clause (a) of Sub-Section (1), which reads as follows :- 8(1). Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen , (a) information , disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b) to (i) xxx xxx xxx j) information which relates to personal information the disclosure of which has no relationship to any public activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in regard to Mr. Rohatgi's contention that under the R.T.I . Act, 2005, a detenu was entitled, in assertion of his human rights, to receive the grounds under which he was to be detained, even before his detention, at the pre-execution stage. 24. As to the second point urged by Mr. Rohtagi as to whether the five exceptions mentioned in Alka Subhash Gadia's case (supra) regarding the right to challenge an order of detention at the pre-execution stage, were exhaustive or not, we are of the view that the matter requires consideration. The decision in Alka Subhash Gadia's case (supra), appears to suggest several things at the same time. The Three-Judge Bench, while considering the challenge to the detention order passed against the detenu , at the pre-execution stage, and upholding the contention that such challenge was maintainable, also sought to limit the scope of the circumstances in which such challenge could be made. However, before arriving at their final conclusion on the said point, the learned Judges also considered the provisions of Articles 19 to 22 relating to fundamental freedoms conferred on citizens and the proposition that the fundamental rights under Chapter III ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf-restraints in exercising these powers. Such self-imposed restraints were not confined to the review of the orders passed under detention law only, but they extended to orders passed and decisions made under all laws. It was also observed that in pursuance of such self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the Courts insist that the aggrieved person should first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary, extraordinary and equitable jurisdiction under Articles 226 and 32 respectively and that such jurisdiction by its very nature has to be used sparingly and in circumstances where no other efficacious remedy is available. However, having held as above, Their Lordships also observed that all the self- imposed restrictions in respect of detention orders would have to be respected as it would otherwise frustrate the very purpose for which such detention orders are passed for a limited purpose. Consequently, inspite of upholding the jurisdiction of the Court to interfere with such orders even at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge could be made only after being prima facie satisfied that the five exceptions indicated in Alka Subhash Gadia's case (supra) had been fulfilled. 27. Their Lordships in paragraph 7 of the judgment held that the case before them did not fall under any of the five exceptions to enable the Court to interfere. Their Lordships also rejected the contention that the exceptions were not exhaustive and that the decision in Alka Subhash Gadia's case (supra) indicated that it is only in the five types of instances indicated in the judgment in Alka Subhash Gadia's case (supra) that the Courts may exercise its discretionary jurisdiction under Articles 226 and 32 of the Constitution at the pre-execution stage. 28. With due respect to the Hon'ble Judges, we have not been able to read into the judgment in Alka Subhash Gadia's case (supra) any intention on the part of the Hon'ble Judges, who rendered the decision in that case, that challenge at the pre-execution stage would have to be confined to the five exceptions only and not in any other case. Both the State and the Hon'ble Judges relied on the decision in Sayed Taher Bawamiya's case (supra). As submitted by Mr. Rohatgi , to accep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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