Holding

A detention under the National Security Act is invalid if the authority fails to consider the detenu's representation under Article 22(5) at the earliest opportunity, and any unreasonable delay vitiates the detention.

Summary

Three writ petitions under Article 32 challenged the detention of individuals under the National Security Act, alleging that the authorities delayed consideration of their representations under Article 22(5) of the Constitution. The petitioners had made representations within days of detention, but the authorities either failed to explain the delay or cited administrative procedures that caused the delay. The Supreme Court held that Article 22(5) imposes a constitutional duty on the detaining authority to consider representations at the earliest opportunity, and any unreasonable delay defeats the validity of the detention. The Court rejected the argument that the rule was a judge‑made creation limited to the Foreign Exchange Act and affirmed that it applies equally to the National Security Act. Consequently, the Court found the delays unreasonable, declared the detentions invalid, and ordered the release of the detainees.

Issues considered

Whether a delay in considering a detenu's representation under Article 22(5) of the Constitution vitiates a detention under the National Security Act.
Whether the constitutional mandate of expeditious consideration of representations applies to the National Security Act as it does to other preventive detention statutes.

Legislation cited

Subjects

preventive detentionArticle 22(5)National Security Actrepresentationdelayconstitutional mandatewrit petitionliberty

Judgment

137

SMT. KHATOON BEGUM ETC. ETC A
v.
UNION OF INDIA AND ORS. ETC. ETC.

March 9, 1981

(0. CHINNAPPA REDDY AND BAHARUL ISLAM, JJ.J B
Constitution af India, I950, Article 22(5) -Whether delay in considering the
representation made by a detenu vitiates the detention under the National Security
Act.

Allowing the appeals, the Court
HELD : 1 : 1. Article 22 (5) of the Constitution en3oms a duty on the
authority making the order of detention to afford the detenu the earliest opportu- c
nity of making a representation against the order. The right and obligation to
make and to consider the representation at the earliest opportunity is a constitu-
tional imperative which cannot be curtailed or abridged. [140 E]

I : 2. If the Parliament or the State Legislature making the law providing
for preventive detention devises a circumlocutory procedure for considering
the representation or if the inter-departmental consultative procedures are such D
that delay becomes inevitable, the law and the procedures will contravene the
constitutional mandate. [140 F]

I : 3. It is essential that any law providing for preventive detention and
any authority obliged to make order for preventive detention should adopt
procedures calculated towards expeditious consideration of representations made
by detenus. It will be no answer to a demand for liberty to say that administra- E
tive red tape makes delay inevitable. The constitutional mandate brooks no
unreasonable delay in the consideration of a representation. [140 G, 141A]

I : 4. The right of detenu to have his representation considered "at the
earliest opportunity" and the obligation of the detaining aLithority to consider
the representation "at the earliest opportunity" are not a right and an obligation
flowing from either the Conservation of Foreign Exchange and Prevention of
Smuggling Activities, 1974 or the National Security Act or, for that matter any F
other Parliamentary or State law providing for preventive detention. They are a
right and an obligation created by the very Constitution which breathes life into
the Parliamentary or State law. [140 DJ

Jayanarayan Sukut v. State of West Bengal, [1970] 3 SCR 225; Narendra
Purshotam Umrao etc. v. B.B. Gujral and Ors., [1979] 2 SCR 315; V.J. Jain v.
Pradhan, AIR 1979 SC 1501; Smt. Ichhu Devi Choraria v. Union of India and Ors.; G
AIR 1980 SC 1983; Ramachandra A. Kamat v. Union of India and Ors. [1980] 2
SCR 1072; Frances Coralie Mullin v. W. C. Khambra and Ors .. [1980] 2 SCR
I 09 5, referred to. ·

ORIGINAL JURISDICTION : Writ Petition Nos. 293, 391 and
392 of 1981. H
(Under Article 32 of the Constitution)
138 SUPREME COURT REPORTS [198 !J 3 S.C.R.

A M.M. Abdul Khader and Shakeel Ahmed for the Petitioners.

R.K. Bhatt, D. Goburdhan and Miss A. Subhashini for the
Respondents.

The Judgment of.the Court was delivered by
B CHINNAPPA REDDY, J. These three Writ Petitions may be dis-
posed of by a single judgment since the principal question argued in
all the three cases is one. The question is whether delay in consider-
ing the representation made by a detenu under Art. 22(5) of the
Constitution vitiates a detention under the National Security Act and
entitles the detenu to be released on that ground alone. As a result
c of a series of decisions of this Court, (1) it is now well settled that
the representation made by a detenu under Art. 22(5) of the
Constitution against his detention under the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974, must be considered by the detaining authority with the ut-
most expedition and that any unexplained delay in considering the
D representation will be fatal to the detention. The learned counsel for
the State .of Uttar Pradesh urged that the rule requiring expeditious
consideration of a detenu's representation is a judge-made rule based
on provisions of the Conservation of Foreign Exchange and Preven-
tion of the Smuggling Activities Act, 1974, and that the extension of
the application of the rule to cases of detention under the National
E Security Act was unwarranted. The learned counsel contrasted the
provisions of the National Security Act and the provisions of the
Conservation of Foreign Exchange & Prevention of Smuggling Acti-
vities Act, 1974, and urged that in the case of detention under
the National Security Act, a certain amount of delay was inevitable
having due regard to the procedure prescribed by the Act and,
F
(1) (a) Jayanarayan Sukut v. State of West Bengal
/
J
[1970] 3 SCR 225
(b) Narendra Purshotam Umrao etc. v. B.B. Gujral & Ors.
[1979] 2 SCR 315:
G (c) Ramchandra A. Kamat v. Union of India and Ors., ._.,.
(1980] 2 SCR 1072 I

(d) Frances Coralie Mullin v. W.C. Khambra and Ors.
(1980] 2 SCR 1095;
(e) V.J. Jain v. Pradhan
AIR 1979 SC 1501
H (f) Smt. Jchhu Devi Choraria v. Union of India and Ors.
AIR 1980 SC 1983.
SMT. KHATOON BEGUM v. UNION (Chinnappa Reddy, J.) 139

therefore, delay in consideration of the representation should not A
be allowed to prejudice the detention. We are unable to agree with
the submission of the learned counsel. We will presently give our
reasons for our inability to accept the learned counsel's submissions
but we will first like to refer to a few facts.

In Writ Petition (Criminal) No. 293 of 1981 the order and B
the grounds of detention were served on the detenu on October 30,
1980 and November l, 1980 respectively. The detenu made a
representation on November 12, 1980. Though according to the
detenu he has received no communication from the Government
about his representation, the Additional District Magistrate has stated
in his counter-affidavit that the representation was rejected on c
December 9, 1980 and that it was communicated to the detenu
through the Superintendent of the Central Jail. The counter-affida-
vit mentions not a word to explain the delay in considering the
representation. The only reference to the representation in the
counter-affidavit is in these two sentences: "It is admitted that the D
detenu made a representation to the Home Secretary on November
12, 1980, and the same was rejected on December 9, 1980. The
rejection of the representation was communicated to the detenu
through Superintendent, Central Jail by the Government".
Similarly in Writ Petition (Criminal No. 391 of 1981, the E
order and the grounds of detention were served on the detenu on
November 12, 1980. The representation was rejected on December
10, 1980. In the counter affidavit filed by the Section Officer, Con-
fidential Department, of the Government of Uttar Pradesh, it is
stated that on receipt of the representation, the Secretary, Home
Department, forwarded it to the District Magistrate for his F
comments. In order to meet the allegations in the representation,
the District Magistrate had to gather information from many sources
and the representation alongwith his comments was returned to the
Home Secretary by the District Magistrate on November 25, 1980.
Thereafter Law Department was consulted and the file could reach
the Home Minister on December 5, 1980 only. The representation
was rejected by the Home Minister on December 8, 1980 and then G
commun,cated to the detenu through the Superintendent, Central
Jail.

In Writ Petition (Criminal) No. 392 of 1981 the order
and the grounds of detention were served on the detenu on H
October 16, 1980. The detenu made a representation on October
24, 1980. It was rejected on November 25, 1980. The counter-
140 SUPREME COURT REPORTS [1981) 3 S.C.R.

A affidavit filed by the Additional District Magistrate does not offer
any explanation for the delay in the consideration of the representa-
tion. He has satisfied himself with the statement "as regards the
representation of the detenu . to the Home Secretary this fact is
admitted".

B The question for consideration is whether a person preventi-
vely detained under the provisions of the National Security Act is
entitled to be released if there is delay in the consideration of the
representation made by him to the detaining authority. It is true
that the series of cases where delay in the consideration of the
representation made by a detenu was held to be fatal to detention
c were cases which arose under the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974. We are however,
unable to see how that would make any difference.

The right of detenu to have his representation considered "at
the earlier opportunity" and the obligation of the detaining autho-
rity to consider the representation "at the earliest opportunity" are
D not a right and an obligation flowing from either the Conservation
of Foreign Exchange and Pr"evention of Smuggling Activities Act
1974, or the National Security Act or, for that matter any other
Parliamentary of State law providing for preventive detention. They
are a right and an obligation created by the very Constitution which
breathes life into the Parliamentary or State law. Art. 22(5) enjoins
E a duty on the authority making the order of detention to afford the
detenu "the earliest opportunity of making a representation against
the order". The right and obligation to make and to consider the
representation at the earliest opportunity is a Constitutional impera-
tive which cannot be curtailed or abridged. If the Parliament
or the State legislature making the law providing for preventive
F
detention devises a circumlocutary procedure for considering the
representation or if the inter-departmental consultative procedures /
l
are such that delay becomes inevitable, the law and the procedures
will contravene the constitutional mandate. It is essential that any
Jaw providing for preventive detention and any authority obliged to
make orders for preventive detention should adopt procedures
G
calculated towards expeditious consideration of representations
made by detenus. It will be no answer to a demand for liberty to
say that administrative red tape makes delay inevitable. The
learned counsel for the State of Uttar Pradesh pointed out
certain differences between the Conservation of Foreign Exchange
H
and Prevention. of Smuggling Activities Act and the National
Security Act which according to him make delay inevitable in
SMT. KHATOON BEGUM v. UNION (Chinnappa Reddy,J.) 141

the consideration of · representations· in cases of detention A
under the National Security Act. We think that the
differences pointed out are irrelevant. The constitutional mandate
brooks no unreasonable delay in the consideration of a representa-
tion. In the cases before us, in Criminal Writ Petition Nos. 293
of 1981 and 392 of 1981. no explanation was offered by the detain-
ing authority for the delay in the consideration of representations B
and in Criminal Writ Petition No. 391 of 1981, administrative red
tape was the only explanation offered. We are satisfied that in all
the three cases there was unreasonable delay in the consideration
of the representations and the detenus are, therefore, entiled to be
released. They will be released forthwith. The Writ Petitions are
allowed. c
V.D.K. Petition allowed