Holding

The High Court was not justified in quashing the detention order; the presence of the Advisory Board’s report alongside other material does not prove the absence of independent consideration by the detaining authority.

Summary

The respondent, Manish Bahal, was detained under Section 3(2) of the National Security Act, 1980, and the detention was approved by the Lt. Governor of Delhi. Bahal filed a representation to the Advisory Board, which reported that there was sufficient cause for his detention. The Lt. Governor, after considering the Board’s report along with other material, confirmed the detention and rejected Bahal’s representation. The Delhi High Court quashed the detention order, holding that the Lt. Governor had not independently considered the representation, violating Article 22(4)‑(5) of the Constitution. The Supreme Court allowed the Union of India’s appeal, holding that the High Court was not justified in quashing the order because the mere placement of the Advisory Board’s report with other documents does not demonstrate a lack of independent consideration, and no delay or undue reliance on the report was shown. Consequently, the detention order stands, and the High Court’s judgment was set aside.

Issues considered

The Lt. Governor’s rejection of the detainee’s representation was not based on independent consideration, violating Article 22(4)‑(5) and the National Security Act.
Whether the High Court was correct in quashing the detention order on the ground of lack of independent consideration.
Whether the requirement of independent consideration of a representation must be satisfied before confirming a preventive detention order.

Legislation cited

National Security Act, 1980s. 10, s. 11, s. 12, s. 3(2), s. 3(4), s. 8, s. 9

Subjects

preventive detentionNational Security Actrepresentationadvisory boardindependent considerationArticle 22detention orderSupreme Court

Judgment

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A UNION OF INDIA AND ORS.
v.
MANISH BAHAL@ NISHU

JULY 9, 2001

B [D.P. MOHAPATRA AND RUMA PAL; JJ.]

National Security Act, 1980-S.3(2) and (4) Preventive Detention-
Representation by detenu-AdvisOI)' Board-Submission ofreport-Detaining
C authority on consideration of said report and other materials, confirming the
order of detention-On challenge, High Court quashing the detention order
holding that there was no independent consideration of representation-
Validity of-Held, merely because report of Advisory Board was also placed
before the authority along with other materials, it cannot be held that there
was no independent consideration of representation by the authority-Thus,
D Order of High Court unsustainable.

Constitution of India, 1950-:-Article 22(4) and (5)-Preventive
Detention -Representation by detenu-Consideration of-Held, there should
be prompt and exped_itious consideration of representation_ by authority.
'
E Respondent was detained under Section 3(2) of th'e National Securi~y
Act, 1980. Respondent-detenu made a representation to the Advisory Board
which submitted its report. Thereafter the detaining authority i.e. the Lt.
Governor on consideration of the said report alongwith other materials placed
on record confirmed the order of detention and rejected the representation of
respondent. Aggrieved, respondent filed a writ petition before the High Court.
F High Court quashed the detention order holding that there was no independent
consideration of the representation by the Lt. Governor. Hence the present
appeal

Allowing the appeal, the Court
G HELD: 1.1. High Court was not justified in quashing the detention order
of respondent holding that the order of the Lt. Governor rejecting the
representation of the detenu was not based on independent consideration.
1820-BI

1.2. In view of Article 22(4) and (5) of the Constitution,
H ' 810
U.0.1. 1·. MANISH BAHAL [MOHi\l'ATRA. J.] 81 I
State Government should promptly consider and expeditiously dispose A.
of the representation of the detenu. In the instant case, merely because the
report of the Advisory Board was placed before the detaining Authority (Lt.
Governor) along with other papers for disposal of the representation made by
the detenu it cannot be held that there was no independent consideration of
the same by the authority. High Court has not recorded any finding that there
was delay or callousness or bureaucratic lethargy on the part of the State B
Government in dealing with the representation of the respondent or that the
Lt. Governor had kept the represertiation submitted before him awaiting the
report of the Advisory Board. No finding is also recorded by the High Court
. ..- that the Lt. Governor solely depended on or relied upon the report of the
Advisory Board for passing the order rejecting the representation. It has also C
not been found that the report of the Advisory Board was the only material
placed before the Lt. Governor while submitting the representation for his
consideration. 1819-E-F-H; 820-A-BI

KM. Abdulla Kunhi and B.l. Abdul Khader v. Union of India andOrs.,
1199111SCC476; Ram Sukrya Mhatre v. R.D. Tyagi, 119921Supp.3 SCC 65 D
and Abdul Salam & Thiyyan v. Union ofIndia 11990) 3 SCC 15. Moosa Husein
Sanghar v. State of Gujarat and Ors. 11993) 1 SCC 511; Navalshankar
/shwarlal Dave and anr. v. State of Gujarat and Ors. 119931Supp.3 SCC 754
and Smt. Gracy v. State of Kera/a, (1991) 2 SCC 1, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 670 E
of2001.

From the Judgment and Order dated 14.12.1999 of the Delhi High Court
in Crl. W.P. No. 809 of 1999.

Ashok Bhan, S. Wasim, A. Quadri and D.S. Mahra for the Appellants. F
Harjinder Singh, Naveen Malhotra and Ms. Vandana Sharma for the
Respondent.

The Judgment of the Court was delivered by
G
O.P. MOHAPATRA, J. Leave granted.

The Union of India through the Secretary, Ministry of Home Affairs, the
Lt. Governor of NCT of Delhi, the Commissioner of Police, Lelhi and the
Superintendent, Central Jail, Tihar, have filed this appeal assailing the judgment
of the Delhi High Court dated 14th December, 1999 in Criminal Writ Petition H
812 SUPREME COURT REPORTS [2001] 3 S.C.R.

A No. 809 of 1999 quashing the order of detention in under section 3(2) of the
"National Security Act, 1980 (hereinafter referred to as 'the Act') and directing
immediate release of the respondent unless required in connection with any
other case. As appears from the impugned judgment the order of detention
has been quashed by the High Court solely on the ground that the Lt.
Governor of Delhi rejected the representation of the detenu-respondent taking
B into consideration the report submitted by the Adyisory.Board and therefore,
did not consider the representation independently.

The Commissioner of Police, Delhi vide order dated 17 .5.1999 ordered
.the detention of the respondent under section 3(2) of the Act with a view to
C prevent him from indulging in activities prejudicially affecting the public order.
The said order of detention was approved by the Lt. Governor ofNCT Delhi
under section ~(4) of the Act vide order dated 20 May, 1999. On 4.6.1999 the
respondent addressed a representation· to the Advisory Board against the
order of his detention. The Advisory Board submitted its report on 10.6.99
stating that there was sufficient cause for the detention of the respondent.
D The report was received at the Police Headquarters on 11.6.1999. Thereafter
the Lt. Governor on consideration of the report along with other material
placed on record confirmed the order· of detention and directed that the
detenu shall be deta\ned for a period of 12 months from the date of his
detention i.e. 18.5.1999. By a separate order passed on the same day (21.6.99)
E the Lt. Governor rejected the representation made by the respondent to the
Advisory Board. Thereafter the respondent filed the writ petition in the High
Court challenging the detention order dated 3rd August, 1999.

The question that arises for consideration is whether the High Court is
right in holding that there was no independent consideration of the
F representation submitted by the Lt. Governor.

A perusal of the relevant provisions of the Act reveals the scheme
which so far as material for the purpose of this case may be stated thus :

In ~!;>-section (3) of section 3 power is vested in the State Government
G to pass order that District Magistrate or Commissioner of Police may also, if
satisfied as provided in ss(2) exercise the power conferred by the said sub-
section within their respective local jurisdiction. In the proviso to the said
sub-section maximum period during which such an order shall remain in force
has been prescribed. In section 3(2) of the Act it is provided that the Central
Government· or the State Government may, if satisfied with respect to any
'H person- that with a view to preventing him from acting in any manner prejudicial
U.0.1. v. MANISH BAI-JAL [MOHAPATRA . .I. I 813

to the security of the State or from acting in any manner prejudicial to the A
maintenance of public order or from acting in any manner prejudicial to ~he
maintenance of supi:-iies and services essential to the community it is
necessary so to do, make an order directing that such person be detained.
Sub-section (4) of the said section mandates that when an order of detention
is made by an officer mentioned in ss(3) he shall forthwith report the facts
to the State Government to which he is subordinate together with the grounds B
on which the order has been made and such other particulars as, in his
opinion, have a bearing on the matter and no such order shall remain in force
for more than twelve days after the making thereof unless, in the meantime,
it has been approved by the State Government. In sub-section(5) it is provided
that when any order is made or approved by the State Government under this C
Section the State Government shall within seven days, report the fact to the
Central Government together with the grounds on which the order has been
made and such other particulars as, in the opinion of the State Government,
have a bearing on the necessity for the order.

In section 8(1) it is laid down that when a person is detained in pursuance D
of a detention ord..._er, the authority making the order shall, as soon as may be,
but ordinarily not late~ than five days and in exceptional circumstances and
for reasons to be recorded in writing, not later than ten days from the date
of detention communicate to him the grounds on which the order has been
made and shall afford him the earliest opportunity of making a representation E
against the order to the appropriate Government.

The constitution of the Advisory Boards is provided in Section 9 of the
Act.

In Section I 0 it is laid down that save as otherwise expressly provided
in the Act, in every case where a detention order has been made under the F
Act, the appropriate Government shall, within three weeks from the date of
detention of a person under the order, place before the Advisory Board
constituted by it under section 9, the grounds on which the order has been
made and the representation, if any, made by the person affected by the order,
and in case where the order has been made by an officer mentioned in sub- G
section(3) of the Section, also the report by such office under sub-section (4)
of that section.

Section 11 which contains provision regarding procedure of Advisory
Boards states that the report of the Advisory Board shall, after considering
the materials placed before it and, after calling for such further information as H
814 SUPREME COURT REPORTS [2001] 3 S.C.R.

A it may deem necessary from the appropriate Government or from any person
called for the purpose through the appropriate Government or from the person
concerned, a11d if, in any particular case, it considers it essential so to do or -.::
if the person concerned desires to be heard, after hearing him in person,
submjt its report to the appropriate Government within seven seeks from the
date of detention of the person concerned.
B
In Section 12 sub-section( I) it is laid down that in any case where the
Advisory Board has reported that there is, in its opinion, sufficient cause for
the detention of a person, the appropriate Government may confirm the
detention order and continue the detention of the person concerned for such --.
C period as it thinks fit. Sub-section (2) of the section provides that in any case
where the Advisory Board has reported that there is, .,in its opinion, no
sufficient cause for the detention of a person, the appropriate Government
shall revoke the detention. order and cause the person concerned to be
released forthwith.

D The High Court, as noted earlier, has quashed the order of detention
only on the ground that the Lt. Governor rejected the representation made by
the detenu-respondent taking into c_onsideration the report of the Advisory
Board. The High Court has placed reliance on the decision of the Constitution
Bench of this Court in the case of K.M. Abdulla Kunhi and B.l. Abdul
Khader v. Union of India and others, [1991] I SCC 476. The High Court has
E observed that in view of the settled position of law which has been laid down
by this Court such ~isposal of the representation offends the right of the
detenu enshrined in Article 22(5) of the Constitution.

Shri Ashok Bhan, learned counsel for the appellant contended that the
decision of the High Court is based on a misreading and mis-construction of
F
the decision of this Court in K. M. Abdulla case (supra). The learned counsel
submitted that the High Court is in error in its conclusion that the Lt.
· Governor did not independently consider the representation of the respondent
merely from the fact that the order rejecting the representation was passed
after receipt of the report of the Advisory Board.
G
Per contra Shri Harjinder Singh, learned counsel appearing for the
respondent, supported the judgment of the High Court. He urged that the
view taken by the High Court is in "accord with the ratio of the Constitution
Bench judgment in KM. Abdulla case (supra). • . )I

H Para 11 of the Judgment of K.!J. Abdulla case (supra) on which reliance
U.0.1. v. MANISl-I BAl-IAL [MOHAPATRA. J.] 815

has been placed by the High Court in its impugned judgment reads as follows. A
"It is now beyond the pale of controversy that the constitutional right
to make representation under Clause (5) of Article 22 by necessary
implication guarantees the constitutional right to a proper consideration
of the representation. Secondly, the obligation of the government to
afford to the detenu an opportunity to make representation and to B
consider such representation is distinct from the government"
obligation to refer the case of detenu along with the representation
to the Advisory Board to enable it to from its opinion and send a
report to the government. It is implicit in Clauses (4) and (5) of Article
22 that the government while discharging its duty to· consider the C
representation, cannot depend upon the views of the Board on such
representation. It has to consider the representation on its own without
being influenced by any such view .of the Board. The obligation of
the government to consider the representation is different from the
obligation of the Board to consider the representation at the time of
hearing the references. The government considers the representation D
to ascertain essentially whether the order is in conformity with the
power under the law. The Board, on the other hand, considers the
representation and the case of the detenu to examine whether there
is sufficient case for detention. The consideration by the Board is an
additional safeguard and not a substitute for consideration of the E
representation by the Government. The right to have the representation
considered by the: government, is safeguarded by Clause (5) of Article
22 and it is independent of the consideration of the detenu 's case and
his representation by the Advisory Board under Clause (4) of Article
22 read with section 8(c) of the Act."
F
In the said decision the Constitution Bench referring to the several
decisions decided earlier held that the right to have the representation
considered by the Government is safeguarded by clause (5) of Article 22 and
it is independent of the consideration of the detenu's case and his
representation by the Advisory Board under clause (4) of Article 22 read with G
section 8(c) of the Act (COFEPOSA Act, 1974). But in that very judgment in
paragraphs 19-20 the Bench observed that there is no constitutional mandate
under clause (5) ~f the Article 22 muchless no statutory requirement to
consider the representation befor& confirming the order of detention as long
as the Government without delay considers the representation with an
unbiased mind there is no basis for concluding that the absence of H
816 SUPREME COURT REPORTS [2001] 3 S.C.R.

A independent consideration is the obvious result if the representation is not
considered before the confirmation of detention. This Court held that indeed
there it no justification for imposing this resti-iction on the determination of ..,
the Government. (emphasis supplied)
Inpara 20 of the judgment, elucidating the point, the Constitution
B Bench observed :

"It is necessary to mention that with regard to liberty of citizens the
court stands guard over the facts and requirements of law, but court
cannot draw presumption against any authority without material. It
may be· borne in mind that the confirmation of detention does not
c preclude the government from revoking the order of detention upon
considering the representation. Secondly, there may be cases where
the government has to consider the representation only after
confirmation of detention. Clause (5) of Article 22 suggests that the
representation could be received even after confirmation of the order
of detention. The words 'shall afford him the earliest opportunity of
D making a representation against the order' in Clause (5) of Article 22
suggest that the obligation of the government is to offer the detenu
an opportunity of making a representation against the order, before it
is confirmed according to the procedure laid down under Section 8 of
the Act. But if the .detenu does not exercise his right to make
E representation at that stage, but presents it to the government after
the government has confirmed the order· of detention, the government
still has to consider such representation and release the detenu if the
detention is not within the power conferred under the statute. The
confirmation of the order of detention is not conclusive as against the
detenu. It can be revoked suo motu under. Section I I or upon a
F representation of the detenu. It seems to us therefore, that so long as
the representation is independently considered by the government
and ifthere is no delay in considering the representation, the fact that
it is considered after the confirmation of detention makes little
difference on the validity of the detention or confirmation of the
detention. The confirmation cannot be invalidated solely on the ground
G that the representation is considered subsequent to confirmation of
the detention. Nor it could be presumed that such consideration is not
an independent consideration. With all respect, we are not inclined to
subscribe to the views expressed in V.J. Jain v. Shri Pradhan, [ 1979]
4 SCC 401 and Om Prakash Bhal v. Union of India W.P. No. 845 of
H 1979 decided on October 15, 1979 (Unreported) and Khairul Haque
y
U.0.1. v. MANISH BAHAL [MOHAPATRA . .l.l 817

W.P. No. 246 of 1969 decided on September I 0, 1969, (Unreported) A
cases. They cannot be considered to be good law and hence stand
overruled.

In Ram Sukrva Mhatre v. R.D. Tyagi, [1992] Supp. 3 SCC 65, this Court
relying on the decision in K.M Abdulla Kunhi (supra) case held that it is
settled law that right to representation under Article 22(5) includes right to B
expeditious disposal not only by the State Government under the relevant
provision of the statute, but also by Central Government. But in each case
it is one of fact to be ascertained whether the Central Government or the State
Government, as the case may be, has caused delay due to negligence, callous
inaction, avoidable red-tapism and undue protraction by the authorities C
concerned. This Court observed that expedition is the rule and delay defeats
mandate of Article 22(5). Taking note of the decision in Abdul Salam &
Thiyyan v. Union of India, [ 1990] 3 SCC 15 it was observed that no hard and
fast rule as to the measure of reasonable time can be laid down and each case
has to be considered from the facts presented therein and that if there is
negligence or callous inaction or avoidable red-tapism on the facts in that D
case, it does not warrant interference.

In the case of Moosa Hussein Sanghar v. State of Gujarat and Ors.,
[1993] I SCC 51 I, this Court relying on K.M. Abdulla Kunhi case (supra) and
other decisions held, inter alia, that in a case where the representation has
been received before the case is referred to the Advisory Board, the appropriate E
Government must consider the same before the matter is referred to the
Advisory Board and it would be justified in not considering the same only
if there is no reasonable time to consider and dispose of the representation
before the case is referred to the Advisory Board and in such case, the
representation may be forwarded to the Advisory Board along with the case
of the detenu. Referring to the provisions under Articles 2 I and 22(5) of the F
Constitution the Bench observed :

"Having regard to the importance of the safeguard of a representation
under Article 22(5) for protection of the right to personal liberty
guaranteed under Article 21 of the Constitution, this Court has G
repeatedly emphasised the need for expeditious consideration of the
representation submitted by a detenu and has insisted that the
representation must be disposed with a sense of urgency without
avoidable delay. The appropriate Government would not be justified
in postponing the consideration of the representation while the matter
is pending consideration before the Advisory Board because the H
818 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A obligation of the Government to consider the representation is different
from that of the Advisory
r
Board".

In Nava/ashanlf.ar /shwarla/ Deva and Anr. v. State of Gujarat and
·others, [1993] Supp. 3 SCC 754, in which the representation was received by
the State Government on 20.3.1993, the State Government decided to keep it
B pending awaiting the report of the Board and on receipt of the report on
March 23, 1993, considered the case and the representation was rejected on
the even date, this Court held that keeping the representation pending awaiting
the decision of the Board and thereafter its rejection are illegal. In para 9 of
the judgment this Court referring to the interpretation of the word 'forthwith'
C under Article 22(5) observed that the exp~ssion would mean 'as soon as may
be' that the action should be performed by the authority with reasonable
speed and expedition with a sense of urgency without any unavoidable delay;
that no hard and fast rule could be laid .nor a particular period is prescribed;
that there should not be any indifference or callousness in consideration and
disposal of the representation. This Court made it clear that the determination
n, of the case depends on the facts and circumstances of each case.

In Sml. Gracy v. Stq,te of Kera/a, [1991] 2 SCC 1, a Bench of three
learned Judges of this Court construing the provisions of the Prevention of
Illicit Traffic in Narcotic Drugs and, Psychotropic Substances Act, 1988 and
E Article 22(4) and (5) of the Constitution held that the nature of duty imposed
on the detaining authority under Article 22(5) in the context of the extraordinary
power of preventive detent.ion is sufficient to indicate that strict compliance
is necessary to justify interference with personal liberty and it is more so
since the liberty involved is of a person in detention and not of a free agent.
The obligation of the governmeqt to consider the representation is different
F from, independent of and in addition to the obligation of the Board to consider
it at the time Of hearing the reference before giving its opin.ion to the
government. In that case during the pendency of the reference before the
Advisory Board the detenu made his representation aHd addressed it to the
Advisory Board. The Advisory ~ard considered the reference relating to the
detenu made by the Central Gove~ment and also the detenu's representation
G submitted to it and gave the opinion that there was sufficient cause to justify
his" preventive detention. The Central Government then made the order
,confirming his detenti~n. This Court observed that detenu's representation
was not considered.by the Central Government independently at any time. In
the counter affidavit Central Government's stand was that since the
H representation was addressed to t~e Advisory Board a~d not to the Central
U.0.1. v. MANISH BAHAL [MOHAPATRA . .I.] 819

Government there was no obligation on it to consider the same independently A
Rejecting this stand of the Central Government and allowing the writ petition
filed on behalf of the detenu this Court observed :
:
"The contents of Article 22(5) as well as the nature of duty imposed
thereby on the detaining authority support the view that so long as
there is a representation made by the detenu against the order of B
detention, the aforesaid dual obligation under Article 22(5) arises
irrespective of the fact whether the representation is addressed to the
detaining authority or to the Advisory Board or to both. The mode
of address is only a matter of form which cannot whittle down the
requirement of the constitutional mandate in Article 22(5) enacted as
one of the safeguards provided to the detenu in case of preventive C
detention.
In the present case there had been a breach by the Central
Government of its duty under Article 22(5) to consider and decide the
representation independently of the Advisory Board's opinion. The
order of detention as_ well as the order of its confirmation passed by D
the Central Government are, therefore quashed. This shall not, l\9wever,
affect the detenu "prosecution for the alleged offence and it shall also
not be construed as a direction to release him in case he is in custody
as a result of refusal of bail."
From the conspectus of the views taken in the decisions discussed E
above, it is clear to us that what this Court has consistently laid stress upon
is, prompt consideration and expeditious disposal of representations of the
detenu received by the State Government at any stage of the proceeding. The
view has been taken in the light of Article 22(4) and (5) of the Constitution.
We do not find any support for the extreme view taken by the High Court F
in the case that merely because the report of the Advisory Board ~as placed
before the Detaining Authority (Lt. Governor) along with other papers for
disposal of the representation made by the detenu there was no independent
consideration of the same by the authority. In the scheme of things under the
Act, the report of the Advisory Board is not an irrelevant material in the
exercise. G
The specific question that arises for consideration is whether on the
facts and circumstances of the case on hand the order passed by the Lt.
Governor rejecting the representation of the detenu-respondent can be held
to have been vitiated on the ground that it was not passed on independent
consideration. It is relevant to make it clear that the High Court has not H
820 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A recorded any finding that there was delay or callousness or bureaucratic
lethargy on the part of the State Government in dealing with the representation
of the respondent or that the Lt. Governor had kept the representation submitted
before him awaiting tfte report of the Advisory Board. No finding is also
recorded by .the High Court that the Lt. Governor solely depended on or relied
upon the report of the Advisory Board for passing the order rejecting the
B representation. It has also· not been found that the report of the Advisory
Board was the only material placed before the Lt.,; Governor while submitting
the representation for this consideration. In such circumstances, we are of the
view that the High Court committed error in holding that the order of the Lt.
Governor rejecting the representation of the detenu. was not based on his
C inde.pendent consideration. At the cost of repetition we may state that the
High Court drew such an inference .
solely
/r
on the ground that the report of
the.Advisory Board was also placed before the Lt. Governor while considering
the representation of the respondent. It is relevant to note here that the
observations ma.de by the Constitution Bench in the case of K.M. Abdulla
Kuntii (supra) and other decisions noted earlier were made with a view to
D bring home the importance of expeditious consideration and disposal of
ieprese'iilation of a detenu under the preventive detention laws in the light
of the right vested in the detenu urider Article 22(4) and (5) of the Constitution.

On the discussions made and the reasons· stated in the foregoing
E paragraphs, we are constrained to hold that in the facts and circumstances
of the case the judgment of the High Court is unsustainable. Accordingly, the
appeal is allowed. The judgment dated 14.12.1999.in Criminal Writ Petition No.
809199 is set aside. Since about five' months have elapsed after the judgment
of the High Court was delivered, .,we leave it open to the detaining authority
to decide whether the respondent' should be taken in detention to complete
F the unexpired period of detention.

S.V.K Appeal allowed.