Holding

A detention order is invalid if the authority fails to consider and dispose of the detenu's representation within a reasonable period, as required by Article 22(5) of the Constitution.

Summary

The petitioner, Rama Dhondu Borade, was detained under the National Security Act, 1980 on the ground that his activities threatened public order in Greater Bombay. He filed a writ petition challenging the legality of his detention, alleging that the Union of India unreasonably delayed consideration of his representation filed on 26‑September‑1988, thereby violating Article 22(5) of the Constitution. The Court examined the constitutional requirement that a detenu's representation must be considered and disposed of with reasonable dispatch, noting that no fixed time limit is prescribed but that undue delay defeats the purpose of the safeguard. It found that the 32‑day delay, including a 14‑day gap to obtain information from the State Government and unexplained holidays, was inordinate and unjustified. Consequently, the Court held that the breach of the constitutional mandate rendered the detention illegal and ordered the petitioner’s immediate release. Both the criminal appeal and the writ petition were allowed.

Issues considered

Whether the delay of 32 days in considering and disposing of the detenu's representation under Article 22(5) of the Constitution violates the constitutional requirement of expeditious consideration.
Whether such a breach of Article 22(5) vitiates the order of detention made under the National Security Act, 1980.

Legislation cited

National Security Act, 1980s. Section 3(2)
National Security (Conditions of Detention) (Maharashtra) Order, 1980s. Clause 4

Subjects

detentionArticle 22(5)representationNational Security Actprocedural fairnesspersonal libertyexpeditious disposalconstitutional law

Judgment

RAMA DHONDU BORADE
A
v.
V.K. SARAF, COMMISSIONER OF POLICE & ORS.

MAY 5, 1989

[B.C. RAY ANDS. RATNAVEL PANDIAN, JJ.] B

Article 22(j)-Detenu's representorion against detention-Neces-
sity for consideration and disposal of representation as expeditiously as
possible.

National Security Act, 1980 & National Security (Conditions of C
detention) (Maharashtra) Order 1980-Section 3 Clause 4-Detention
Order-Representation of Detenu-Necessity for disposal with the
promptitude and diligence.

With a view to preventing the petitioner-detenu from indulging in
activities that were prejudicial to the maintenance of public Order in D
Greater Bombay, the Commissioner of Police, Greater Bombay, in
exercise of the powers conferred on him by Sub-Section (2) of Section 3
of the National Security Act, 1980 read with clause 4 of the National
,J.-~ Security (Conditions of detention) (Maharashtra) Order 1980 passed on
Order of detention, pursuant whereof the Petitioner-detenu was
detained in Central Prison, Nasik. He was furnished with copies of E
grounds of detention and other material on the basis of which the
detaining authority based his subjective satisfaction.

In order to challenge the legality and validity of the detention
l Order, the detenu filed a Writ Petition before the Bombay High Court
which was dismissed. Against the Order of the High Court, the f
detenu-petitioner has filed criminal appeal after obtaining special
leave. He has also filed a separate Writ Petition in this Court challeng-
ing his detention. Both were heard together by this· Court.

Counsel for the appellant raised several contentions assailing the
legality of the detention order, one of which being that there was inor- G
y' dinate and unexplained delay caused by the Union of India in consider-
ing and disposing of his representation dated 26-9-88, as such his
continued detention was unconstitutional and illegal being violative of
Article 22(5) of the Constitution.

Allowing the appeal as also the Writ Petition this Court H

191
192 SUPREME COURT REPORTS [1989] 3 S.C.R.

HELD: The detenu has an independent constitutional right to
A
make his representation under Article 22(5) of the Constitution of
India. Correspondingly there is a Constitutional mandate commanding
the concerned authority to whom the deteuu forwards his representa-
tion questioning the correctness of the detention Order clamped upon
him and requesting for his release, to consider the said representation
B within reasonable dispatch and to dispose the same as expeditiously as y
possible. [198H; 199A-B]

(Jayanarayan Sukul v. State of West Bengal, [1970] I SCC 219;
Abdul Karim & Ors. v. State of West Bengal, [1969] l SCC 433; Pankaj
Kumar Chakravarty & Ors. v. State of West Bengal, [1969] 3 SCC 400.
c This constitutional requirement must be satisfied with respect but
if this constitutional imperative is observed in breach, it would amount
to negation of the constitutional obligation rendering the continued
detention constitutionally impermissible and illegal; since such a breach
would defeat the very concept of liberty-the highly cherished right
D which is enshrined in Article 21 of the Constitution. [1998-C]

The use of the word "as soon as may be" occurring in Article
22(5) of the Constitution reflects that the representation should
be expeditiously considered and disposed of with due promptitude and .~
diligence and with a sense of urgency and without avoidable delay.
E What is reasonable dispatch depends upon the facts and circums-
tances of each case and no hard and fast rule can be laid down in that
regard. [199D]

Rashik Sk. v. State of West Bengal, [1973] 3 SCC 476.

F Smt. Sha/ini Soni & Ors. v. Union of India & Ors., [1980] 4
sec 544.
In the instant case, the gap between the receipt and disposal of the
representation is 28 days but upon the date of service of the order of
rejection on the detenu the delay amounts to 32 days. The only explana-
G lion offered by the 3rd respondent is that further information required
from the State Government was received by the third respondent on '(
17-10-88 after a delay of nearly 14 days and then the representation of
the detenu was disposed of on 27-10-88 within which period there were
certain holidays. There is an inordinate and unreasonable delay and the
explanation given by the third respondent is not satisfactory and accept-
H able. Detenu directed to be set at liberty forthwith. [199F-H; 200A, Bl
RAMA DHONDU v. V.K.SARAF (PANDIAN, J.) 193

B. Sund/Jr Rao & Ors. v. State of Orissa, (1972] 3 SCC 11;
Jnanendra Nath Roy v, The State of West Bengal, (1972] 4 SCC SO; A
Frances Coralie Mullin v. W. C. Khambra and Others, (1980] 2 SCC
27S; Vijay Kumarv. State of Jammu.and Kashmir & Ors., [1982] 2 SCC
43; Raisuddin alias Babu Tamchi v. State of Uttw Pradesh and another,
[1983]-' SCC537 and Mohinuddin alias Main Master and Ors., v. D.M.
Beed, [1987] 4 SCC 58, referred to. · . B

CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Cr!.) No. 86of1989. Criminal Appeal No. 376of 1989.

(Under Article 32 of the Constitution of India).

'>--- R.B. Thakre, Avadhut M. Chimalker, Deepak and M.N. · C
Nargolkar for the Petitioner/Appellant.

T.C. Sharma, Ms. A. Subhashini, A.M. Kllanwilkar .and A.s.
Bhasme for the Respondents.
D
The Judgment of the Court was delivered by

S. RATNAVEL PANDIAN, J. Rule nisi in the writ petition and
leave granted in the special leave petition. ·

Both this writ petition and the. criminal. appeal are preferred by E.
one Rama Dhondu Borade-the detenu herein-chalienging the lega-
lity and validity of the Order of detention passed by the Commissioner
of Police, Greater Bombay in exercise of the. powers conferred by
sub-section (2) of Section 3 of the. National Security Act 1980 (Cent- .
ralAct 56 of 1980) (hereinafter referred as the 'Act') read with clause
4 of the National Security (Conditions of Detention) (Maharashtra) F
Order, 1980 with a view to preventing the detenu from indulging in
activities that are prejudicial to the maintenance of public order in
Greater Bombay.

In pursuance of the impugned order, the detenu is detained in
the Central Prison, Nasik from 31.8.88. He has been furnished with G
the copies of .the grounds of detention and other materials on the basis
of which the detaining authority drew his subjective satisfaction. In the
grounds of detention the detenu is stated to have been involved in.
three incidents; they being: . ·

(1) On 9.4.1988 at about 11.30 p.m. the detenu_and his associate H
194 SUPREME COURT REPORTS [1989] 3 S.C.R.

A
Sunil attacked one Laxman Devsingh Gurkha, during the r
course of which Sunil slapped on his face while the detenu
caused an injury with a sword on the neck of Laxman. In
respect of this incident a case as CR No. 269 of 1988 for
offences under Sections 324 and 114 Indian Penal Code has
been registered by Dadar Police; yr
B
(2) On 10.4.1988 the detenu along with his associates went to a
pharmaceutical company at Worli and demanded a sum of
Rs.3000 at the point of choppers from one Banwarilal ~

Bhagirath and on subsequent dates from one Babula! Mistry. ~-
Relating to this incident, Babula! lodged before Worli Police
Station a complaint which was registered as CR No. 183/88
c for offences under Sections 384 and 114 of the Indian Penal ~
Code. On 14.4.88 the police attempted to arrest the detenu
;md his associates, but they all managed to escape. However,
the police arrested one of his associates Suresh P. Shelar who
on search was found to be in possession of a chopper. Subse-
D quently the detenu was arrested on 9.8.88. But later on he
was released on bail;

(3) On 1.8.88 the detenu was arrested near the gate of Century
Bazar and on search he was found to be in possession of a A
Rampuri knife. In this connection, a case vide LAC No.
E 2912/88 was registered in Dadar Police Station under the
Bombay Police Act, 1951. On 2.8.88 the detenu was released
on bail.

In view of the above alleged violent activities of the detenu creat-
ing a sense of insecurity in Greater Bombay, the detaining authority ,\_
F on being satisfied on the materials placed before him that the activities
of the detenu were prejudicial to the maintenance of public order in
Greater Bombay, passed the impugned detention order. Challenging
the correctness of this detention order, the detenu filed Writ Petition
No. 1044 of 1988 before the High Court of Bombay which for the
reasons mentioned in the judgment dismissed the same. This criminal
G appeal is preferred against that judgment. In addition to that, he has
filed Writ Petition No. 86 of 1989 before this Court. '1

The learned counsel appearing on behalf of the appellant/pe-
titioner raised several contentions assailing the legality of the order
one of which being that there is an inordinate and unexplained delay
H caused by the third respondent (Union of India) in considering and
RAMA DHONDU v. V.K.SARAF [PANDIAN, J.] 195
-~
I
disposing of the representation of the detenu dated 26.9.88 and as such
A
the continued detention of the appellant is unconstitutional and illegal
being violative of the mandatory provisions of Article 22(5) of the
Constitution of India.

As we are inclined to dispose of this appeal and the writ petition
on this ground alone we do not propose to traverse on other grounds B
canvassed before us.

With regard to the right of making the representation the detenu
has been informed in the grounds of detention as follows:

"You are further informed that you have a right to make a
representation to the Central Government, the State c
Government and the undersigned against the order of
detention and that you shall be afforded the. earliest
opportunity to make such a representation."

It is not in dispute that the detenu made his representation both D
to the State Government as well as the Central Government on
26.9.88. But the 3rd respondent which has already completed the
examination of the report dated 6.9.88 sent by the 2nd respondent (the
State Government) under Section 3(5) of the Act even on 13.9.88.
however, felt that certain informations were required from the State
Government for its further consideration of the representation and, E
therefore, the 3rd respondent sent a wireless message on 3.10.1988 to
the State Government asking for further informations.

\ The required information was received by the third respondent
)-. only on 17.10.88. Thereafter the representation was considered and
the final decision to reject it was taken on 27.10.88 and the decision of F
the Central Government rejecting the representation was communica-
ted to the appellant through crash wireless message on 31.10.88.

In attempting to explain the delay from 17.10.88 to 27.10.88 it is
stated in the counter-affidavit filed on bahalf of the third respondent
that 18th, 20th, 22nd and 23rd October 1988 were the closed holidays; G
but no explanation is given as to why the representatic,m was not
attended to and disposed of on 17th, 19th, 21st, 24th to 26th October.
In explaining the delay in communicating the decision taken on
27.10.88 it is stated that 29th and 30th October were ho:idays but the
affidavit is silent as to why that decision had not been communicated
to the detenu either ori 27th or 28th October, 1988. H
196 SUPREME COURT REPORTS [1989] 3 S.C.R.

With regard to the delay of 14 days in passing the information
A
required by the 3rd respondent, the 2nd respondent (the State
Government) in its affidavit states that it received the parawise com-
ments of the detaining authority on the representation of the detenu
on 12.10.88 and thereafter it forwarded the same to the 3rd respon-
dent. The 1st respondent (the detaining authority) has filed a separate
affidavit stating that since the officer of the Dadar police station was
y·
B
attending the meeting of the Advisory Board on the 7th and 11th
October, 1988, a delay of 7 days had occurred in forwarding his
parawise comments to the 2nd respondent. These explanations given
by both the !st and the 2nd respondents are not at all satisfactory and
we are left with an impression that the !st and the 2nd respondents had
not diligently collected the informations required by the 3rd respon-
c dent and thereby caused a considerable delay which had further ~.
delayed the consideration and disposal of the representation of the
detenu by the 3rd respondent.

We shall now examine the proposition of law relating to the
D delayed consideration and disposal of the representation of a detenu
with reference to the judicial pronouncements.

There is a line of decisions of this Court dealing with this aspect 1_
of law of which we shall make reference to a few. __,....

E In Jayanarayan Sukut v. State of West Bengal, [1970] l SCC 219
the following observation has been made:

"It is established beyond any measure of doubt that the
appropriate authority is bound to consider the representa-
tion of the detenu as early as possible. The appropriaie ,-\_
F. Government itself is bound to consider the representation
as expeditiously as possible. The reason for immediate con-
sideration of the representation is too obvious to be stres-
sed. The personal liberty of a person is at stake. Any delay
would not only be an irresponsible act on the part of the
appropriate authority but also unconstitutional because the
G Constitution enshrines the fundamental right of a detenu to
have his representation considered and it is imperative that ·-y
when the liberty of a person is in peril immediate action
should be taken by the relevant authorities."

This Court in Niranjan Singh v. State of Madhya Pradesh, [1973]
H SCR 691 expressed the view that it is incumbent on the State to
RAMA DHONDU v. V.K.SARAF [PANDIAN, J.] 197

explain the inordinate delay in considering and rejecting the represen-
A
tation of the detenu and· satisfy the Court that there was j.ustification in
that delay.

While dealing with the constitutional requirement of expeditious
- ..,.. consideration of the detenu's representation by the Government as
spelt out from Clause 5 of Article 22 of the Constitution this Court, B
after referring to the decisions in Abdul Karim and Others v. State of
West Bengal, [1969] 1 SCC 433 and Pankaj Kumar Chakraborty and
Others v. State of West Bengal, [1969] 3 SCC 400 has stated in Rashik
Sk. v. State of West Bengal, [1973] 3 SCC 476, as follows:

"It is undoubtedly true that neither the Constitution nor C
the Act expressly provides for consideration of a detenu 's
representation by the State Government within. any speci-
fied period of time. The constitutional requirement of
expeditious consideration of the petitioner's representation
by the State Government has, however, been spelt out by
this Court from clause (5) of Article 22 of the Constitu- D
tion."

xxxxxxx xxxxxxx xxxxxxx

"The use of the words "as soon as may be" (occurred in
Article 22(5) of the Constitution) is. important. It reflects E
the anxiety on the part of the framers of the Constitution to
enable the detenu to know the grounus on which the order
of his detention has been made so that he can make an
effective representation against it at the earliest. The ulti-
mate objective of this provision can only be the most
speedy consideration of his representation by the authori- F
ties concerned, for, without its expeditious consideration
with a sense of urgency the basic purpose of affording
earliest opportunity of making the representation is likely
to be defeated. This right to represent and to have the
representation considered at the earliest flows from the
constitutional guarantee of the right to personal lihertv- G
the right which is highly cherisheu in our Republic and its
protection against arbitrary an<l unlawful invasion.·

xxxxxxxxxx ~ xxxxxxxxxx xxxxxxxxxx

"Now, whether or not the State Government has in a given H
198 SUPREME COURT REFORTS [1989) 3 S.C.R.

case considered the representation made by the detenu as
A
soon as possible, in other words, with reasonable dispatch,
must necessarily depend on the facts and circumstances of
that case, it being neither possible nor advisable to lay
down any rigid period of time uniformly applicable to all
cases. The Court has in each case to consider judicially on
B the available material if the gap between the receipt of the y
representation and its consideration by the State Govern-
ment is so unreasonably long and the explanation for the
delay offered by the State Government so unsatisfactory as
to render the detention order thereafter illegal."

Chinnappa Reddy, J. speaking for the bench in Smt. Shalini Soni
c and Others v. Union of India & Ors .. [1980) 4 SCC 544 has emphasised ~
the constitutional obligation on the part of the authorities concerned in
dealing with the representation of a detenu as follows:

"Quite obviously, the obligation imposed on the detaining
D authority, by Article 22(5) of the Constitution, to afford to
the detenu the earliest opportunity of making a representa-
tion, carries with it the imperative implication that the rep-
resentation shall be considered at the earliest opportunity.
Since all the constitutional protection that a detenu can
claim is the little that is afforded by the procedural safe-
E guards prescribed by Article 22(5) read with Article 19, the
Courts have a duty to rigidly insist that preventive deten-
tion procedures be fair and strictly observed. A breach of
the procedural imperative must lead to the release of the
detenu."

F See also B. Sundar Rao and Others v. State of Orissa, [1972) 3
SCC 11; Jnanendra Nath Roy v. The State-0f West Bengal, [1972] 4
SCC 50; Frances Coralie Mullin v. W. C. Khambra and Others, [1980] i
SCC 275; Vijay Kumar v. State of Jammu and Kashmir & Ors., [1982] 2
SCC 43; Raisuddin alias Babu Tamchi v. State of Vilar Pradesh and
another, [1983) 4 SCC 537 and Mohinuddin alias Main Master and Ors.
G v. D.M. Beed, 11987] 4 sec 58.

The propositions deducible from the various reported decisions
of this Court can be stated thus: ·

The detenu has an independent constitutional right to make his
H representation under Article 22(5) of the Constitution of India.
RAMA DHONDU v. V.K.SARAF [PANDIAN, J.J 199

Correspondingly, there is a constitutional mandate commanding the A
·concerned authority to whom the detenu forwards his representation
questioning the correctness of the detention order clamped upon him
and requesting for his release, to consider the said representation
within reasonable dispatch and to dispose the same as expeditiously as
possible. This constitutional requirement must be satisfied with
B
respect but if this constitutional imperative is observed in breach, it
would amount to negation of the constitutional obligation rendering
the continued detention constitutionally impermissible and . illegal,
since such a breach would defeat the very concept of liberty-the
-
~· highly cherished right-which is enshrined in Article 21 of the
Constitution.
c
True, there is no prescribed period either under the provisions of
the Constitution or under the concerned detention law within which
the representation should be dealt with. The use of the word "as soon
as may be" occurring in Article 22(5) of the Constitution reflects that
the representation should be expeditiously considered and disposed of
D
with due promptitude and diligence and with a sense of urgency and
without avoidable delay. What is reasonable dispatch depends on the
facts and circumstances of each case and no hard and fast rule can be
laid down in that regard. However, in case the gap between the receipt
of the representation and its consideration by the authority is so
unreasonably long and the explanation offered by the authority is so
unsatisfactory, such delay could vitiate the order of detention. E
\

Coming to the facts of this case, we shall now examine whether
the delay that had occurred in consideration and disposal of the
representation of the detenu is so inordinate and unreasonable vitiate
ing the order of detention or whether that delay is satisfactorily
F
explained by the third respondent.

In the instant case, the gap between the receipt and the disposal
of the representation is 28 days but upto the date of service of the
order of rejection on the detenu the delay amounts to 32 days. The
only explanation offered by the third respondent is that further infor-
mation required from the State Government was received by the third G
respondent on 17.10.88 after a delay of nearly 14 days and then the
representation of the detenu was disposed of on 27.10.88 within which
period '.here were certain holidays. Barring that, ·there is no other
explanation. This delay when scrutinised in the light of the proposition
of law adumberated above, we are of the view, that there is an inordi-
H
200 SUPREME COURT REPORTS [1989] 3 S.C.R.

A nate and unreasonable delay and the present explanation given by the
third respondent is not satisfactory and acceptable.

Hence, for the aforementioned reasons we set aside the
impugned order of detention on the ground that there is a breach of
constitutional obligation as enshrined undu Article 22(5) of the
B y
Constitution of India. I

In the result.the appeal as well as the Writ Petition are allowed.
The detefiu is directed to be ~et at liberty forthwith.

Y.L. Petitions Allowed.