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TMI Blog1981 (9) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for us to deal with them all as the view that we take on one of them is sufficient to dispose of the petition. The main contention is that the procedure adopted by the Advisory Board in allowing legal assistance to the State and denying such assistance to the detenu was both arbitrary and unreasonable and thus violative of Art. 21 read with Art. 14 of the Constitution. First as to the facts. On June 1, 1981, the District Magistrate passed an order of detention under sub-s. (2) of s. 3 of the Act on being satisfied that detention of Inderjit was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community, and as required by sub-s. (3) thereof, made a report forthwith to the State Government together with the grounds on which the order of detention had been made and the State Government approved of the same. The detenu was apprehended on June 11, 1981 and served with the order of detention together with the grounds and, in due course, the detenu submitted his representation challenging the order of detention to the State Government. He made a request in writing that he be allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings of the Advisory Board, all that was shown to us was the report of the Advisory Board. We were in formed that the record was not with the State Government but with the Board. It was represented that the Advisory Board does not forward its records because they are confidential. In the absence of ) the record, there is no other alternative but to proceed on the allegations made by the petitioner. The report of the Board does indicate that the Public Prosecutor who was present was questioned on one of the aspects of the matter. It also records the presence of two Additional District Attorneys. It is argued on behalf of the State that under sub-s. (4) of s. 11 of the Act the detenu was not entitled to any legal assistance before the Advisory Board. The submission is that the proceedings of the Board and its report except that part of the report in which the opinion of the Board is expressed, are confidential. Therefore, lawyers have no place in the proceedings before the Advisory Board. It is further argued that the Advisory Board is entitled to devise its own procedure. Our attention was drawn to sub-s. (I) of s. 11 of the Act, and it is urged that the Advisory Board is en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e record and see whether there was any material on which the order of detention could be passed under s. 3 of the Act, but may also call for such further information as it may deem necessary from the appropriate Government or from the person concerned and if, in any particular case, it considers essential to do so or if the person concerned desires to be heard, shall hear him in person. The Board is entitled to devise its own procedure. It is the arbitrariness of the procedure adopted by the Advisory Board that vitiates the impugned order of detention. There is no denying the fact that while the Advisory Board disallowed the detenu's request for legal assistance, it allowed the detaining authority to be represented by counsel. It appears that the Advisory Board blindly applied the provisions of sub s. (4) of s. 11 of the Act to the case of the detenu failing lo appreciate that it could not allow legal assistance to the detaining authority and deny the same to the detenu. The Advisory Board is expected to act in a manner which is just and fair to both the parties. The report of the Board placed before us shows that the detenu exercised his right to recall some of the witnesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Arbitrariness is the very antithesis of Art. 14. The principle of reasonableness is an essential element of equality and the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14. Among the concurring opinions, Krishna Iyer, J., although he generally agreed with Bhagwati, J., goes a step forward by observing(l): Procedural safeguards are the indispensable essence of liberty. In fact, the history of procedural safeguards and the right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights: observance of fundamental rights is not regarded as good politics and their transgression as bad politics. In short, the history of personal liberty is largely the history of procedural safeguards. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is, therefore, of prime importance to the body politic. In Francis Coralie Mullin v. The Administrator, Union T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, within the domain of the Legislature, and not the Judiciary. In Smt. Kavita v. The State of Maharashtra and Ors (1) the Court recently had an occasion to deal with s. 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, which is in pari materia with sub-s. (4) of s. 11 of Act. The Court speaking through Chinnappa Reddy, J. Observed: It is true that while s. 8 (e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer. The learned Judge emphasised that as often than not adequate legal assistance may be essential for the protection of the Fundamental to Right to life and personal liberty guaranteed by Article 21 of the Constitution and the right to be heard given to a detenu by s. 8 (e), COFEPOSA Act and observed that this valuable right may be jeopardized and reduced to mere nothing with adequate legal assistance, in the light of the intricacies of the problems involved and other relevant factors. He then went on to say whether or not legal assistance should be afforded by the Advisory Board must necessarily depend on the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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