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TMI Blog1987 (10) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner's uncle Atubai Bhikhabhai in writing about the detention of the petitioner under the PASA Act and also recorded the statement of Atubhai for that purpose. The grounds of detention dated March 31, 1987, were served to the petitioner at the time of serving the detention order and the petitioner was then lodged in prison at Bhuj-Kutch.... .... .... .... .... 3. Deriving the support from the judgment of the Supreme Court in A.K. Roy v. Union of India 1982CriLJ340 , it is submitted that the family members of the petitioner were not informed in writing about the detention and also about the place where the petitioner was to be lodged and, therefore, the detention order vitiates. 4. The information of the detention in this case was given in writing to the uncle of the petitioner. In the subsequently added paragraph 14A in the petition, the petitioner contended that he was arrested by the Police on January 31, 1987 and was taken to the Police Station, and his family members were not informed about his arrest, and that he was detained in Special Prison, Bhuj, and as the respondents failed to inform, the petitioner is deprived of his personal liberty guaranteed under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Prison, Bhuj. It is but natural that when the petitioner was taken in custody from his residence, Atubhai, who was the Municipal Councillor, would definitely inquire as to where the petitioner would be lodged. Deposition of Police Inspector Shri Patel in his affidavit that he had informed Atubhai that the petitioner was to be lodged in Special Prison. Bhuj, should, therefore, be accepted. However, it should be held that such information was given orally and not in writing. First part of the procedural requirement, as laid down by the Supreme Court is, therefore, complied with. 5. In A.K. Roy's case (supra), provisions of the National Security Act were challenged on various grounds, but in the instant case, the observations regarding the provisions of Section 5, National Security Act, 1980, which are in pari materia with the provisions of Section 5 of the PASA Act are relevant. In paragraph 74 of the judgment, the note of caution is that the laws of Preventive Detention should not, by the backdoor, introduce procedural measures of a punitive kind, and that the detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to know from any other source will comply the procedural requirements laid down by the Supreme Court, and non-compliance by not intimating in writing should not per se vitiate the detention order. It is also submitted that the detenu must establish that prejudice is caused to him by non-compliance of the said procedural requirements laid down by the Supreme Court, and if no prejudice is caused, the order of detention cannot be quashed. It is submitted that from the observations of the Supreme Court, what is more important is the information to the relatives of the detenu and not the fact that it should be in writing It is tried to assert that the procedure required to be followed under Article 21, Constitution of India, is only that procedure which is prescribed by law, i.e. the statute by the legislature, as the second part of Article of the Constitution provides for the exception for deprivation of personal liberty under the Preventive Detention Act. 8. We are, indeed, bound by the above observations of the Supreme Court in paragraph 75 of the judgment in A.K. Roy's case (supra) as under Article 141, Constitution of India, law declared by the Supreme Court is binding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s he then was). After discussing the observations in A.K. Gopalan v. State of Madras 1950CriLJ1383 and R.C. Cooper v. Union of India [1971]1SCR512 , it is observed that the procedure required to be prescribed under Article 21 should not be arbitrary, unfair, oppressive or unreasonable. It is also observed that even on principle, the concept of reasonableness must be projected in the procedure as contemplated by Article 21, having regard to the impact of Article 14 on Article 21. In the judgment of His Lordship Mr. Justice Y.V. Chandrachud (as he then was), it is observed in paragraph 48 that the mere prescription of some kind of procedure cannot ever meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. The question whether the procedure prescribed by law which curtails or takes away the personal liberty guaranteed by Article 21 is reasonable or not, has to be considered, not in the abstract or on hypothetical considerations like the provision for a full-dressed hearing as in a Court-room trial, but in the context, primarily of the purpose which the Act is intended to achieve and of urgent situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clause. But apart from Article 22, there is also Article 21 which lays down restrictions on the power of preventive detention. The Supreme Court then referred Maneka Gandhi's case (supra) and observed that it is not enough to secure compliance with the prescription of Article 21 that there should be a law prescribing some semblance of a procedure for depriving a person of his life or personal liberty, but the procedure prescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Article 21. After referring Hussainara Khatoon's case (supra) and Sunil Batra's case 1978CriLJ1741 , and 1978CriLJ1741 , it is observed that the position now is that Article 21 as interpreted in Maneka Gandhi's case (supra) requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just, and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1950CriLJ1383 . It is observed; 'Procedure established by law' means procedure prescribed by the law of the State These words are to be taken to refer to a procedure which has a statutory origin, for no procedure is knows or can be said to have been established by such vague and uncertain concepts as 'the immutable and universal principles of natural justice'. It is also observed: The word 'law' in Article 21 has not been used in the sense of 'general law' connoting what has been described as the principles of natural justice outside the realm of positive Law. 'Law' in that article is equivalent to State-made law. In Maneka Gandhi's case (supra), Krishna Iyer, J., observed in paragraph 89 as under: A certain normative harmony among the articles is thus attained, and I hold Article 21 bears in its bosom the construction of fair procedure legislatively sanctioned. Even in Maneka Gandhi's case, the procedure under Article 21 is referred as the procedure which is prescribed by the Statute. In Additional District Magistrate, Jabalpur v. Shivakant Shukla 1976CriLJ945 , provisions of Article 21 and the phrase 'procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 21 is wide enough to cover the entire process by which deprivation is effected and that would include not only the adjectival but also the substantive part of the law. Take for example, a law of Preventive Detention which sets out the grounds on which a person may be preventively detained. If a person is preventively detained on a ground other than those set out in the law, the preventive detention would obviously not be according to the procedure prescribed by the law, because the procedure set out in the law for preventively detaining a person prescribes certain specific grounds on which alone a person can be preventively detained, and if he is detained on any other grounds; it would be vioiative of Article 21. Every facet of the law which deprives a person of his life or personal liberty would therefore have to stand the test of reasonableness, fairness and justness in order to be outside the inhibition of Article 21. 17. It is, therefore, clear that the procedure prescribed by law under Article 21 should be the procedure prescribed by the Statute. This aspect is required to be considered for the purposes of ascertaining the effect of infraction of the provisions of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the household about the order of detention. If the information is given in any other manner then in writing, the order should not be set aside as the direction by the Supreme Court is substantially complied with. 19. Mr. G.D. Bhatt, learned Additional Public Prosecutor for the respondents, referred Wasi Uddin Ahmed v. The District Magistrate, Aligarh, U.P. 1981CriLJ1825 , in which, in the grounds of detention, the detenu was not informed that he had a right to make a representation against the order of detention, as envisaged by Article 22(5), Constitution of India, read with Section 8, National Security Act, 1980, and also a right of being heard before the Advisory Board while he was served with the detention order. It was observed that the right of the detenu to make a representation under Article 22(5) would be, in many cases, of little avail if the detenu is not 'informed' of that right. However, in that case noncompliance of the provisions of Article 22(5) was not considered per se fatal as the detenu was an enlightened person and had been in active politics and was fully cognizant of his right to make a representation. Deriving strength from the observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed by the Statute or under Article 22(5), but while considering the effect of the infraction of the procedure prescribed by the Court under Article 21, the circumstances, the directions, etc. should be considered as was done by the Supreme Court in Maneka Gandhi's case (supra). Every infraction of the procedure prescribed by the Court under Article 21, therefore, should not be considered per se fatal. Even in A.K. Roy's case (supra) the Supreme Court did not consider the effect of infraction of procedure prescribed by the Court. 21. In A.K. Roy's case (supra), the Supreme Court was considering the provisions of Section 5, National Security Act, 1980. The said provisions were not declared ultra vires the Article 21 for the reason that they did not conform the test of fairness, justness and reasonableness, under Article 21. It is, however, clear that the Supreme Court observed that in order that the procedure attendant upon detentions should conform the mandate of Article 21 in the matter of fairness justness and reasonableness, it should be considered imperative that immediately after a person is taken in custody in pursuance of an order of detention, the memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n A.K. Roy's case (supra) the observation is for giving information in writing of the order of detention and of the fact that the detenu has been taken in custody in pursuance of the order of detention, to the members of his household. That direction in writing is only relating to the order of detention. It is not stated that the intimation must also be given in writing as to the place of detention including the place where the detenu is transferred from time to time. As it is not specifically mentioned that, that intimation should be in writing, oral intimation would serve the purpose. If at all the Supreme Court had considered it necessary, it would have specifically mentioned that such information should also be given in writing. It should, therefore, not be inferred that such information about the place of detention or transfer of the detenu from one Jail to another Jail should also be given in writing. Reverting to the facts of the instant case, it is clear that the information about the order of detention was given in writing and the intimation about the place of detention was given orally. Direction by the Supreme Court was, therefore, complied with, and for that reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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