Supreme Court clarifies Detaining Authority’s Duty to Consider Representation in Preventive Detention Cases: Ankit Ashok Jalan vs. Union of India (2020)

Introduction

Date of the Judgment: 04 March 2020

Citation: 2020 INSC 231

Judges: Uday Umesh Lalit, J., Indu Malhotra, J., Hemant Gupta, J. (Majority opinion by Uday Umesh Lalit and Indu Malhotra, J. Hemant Gupta, J. gave a dissenting opinion)

Can a detaining authority postpone reviewing a detainee’s representation until the Advisory Board submits its report? The Supreme Court of India recently addressed this critical question concerning preventive detention laws. This case examines the balance between individual liberties and state security, focusing on the procedural fairness required when someone is detained without trial. The core issue revolves around whether a detaining authority, specifically a specially empowered officer, must independently consider a detainee’s representation against their detention, or if they can wait for the Advisory Board’s opinion. The majority opinion was authored by Justice Uday Umesh Lalit, with Justice Indu Malhotra concurring, while Justice Hemant Gupta dissented.

Case Background

The case began with detention orders issued on July 1, 2019, by the Joint Secretary to the Government of India, acting under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). These orders targeted Shri Ashok Kumar Jalan and Shri Amit Jalan, aiming to prevent them from smuggling, abetting smuggling, or dealing in smuggled goods. The detenues were served with the detention orders, grounds of detention, and relevant documents on July 2, 2019.

The grounds of detention informed the detenues of their right to make representations to the Detaining Authority, the Central Government, and the Advisory Board. On July 18, 2019, their cases were referred to the Central Advisory Board. A representation was made on behalf of both detenues on July 22, 2019, to the Joint Secretary (COFEPOSA), seeking copies of the retraction petition of Shri Anand and CCTV footage. The detenues stated that they could not make their final representation without these documents.

The representation was forwarded to the Directorate of Revenue Intelligence (DRI), Kolkata, on July 24, 2019, for comments, which were received on July 29, 2019. Both the representation and the comments were sent to the Central Advisory Board on July 31, 2019. However, on August 2, 2019, the High Court of Delhi quashed the detention orders, citing the detenues’ judicial custody and the non-placement of the retraction petition before the Detaining Authority. The Supreme Court then set aside the High Court’s decision on November 22, 2019, directing the detenues to be taken back into custody.

Following this, on December 2, 2019, a direction was issued to process the files of the detenues for reference to the Central Advisory Board. The case was referred to the Central Advisory Board on December 5, 2019, stating that the representations would be considered only after the Board’s opinion was received. This led to the filing of the writ petition challenging the delay in considering the representation.

Timeline

Course of Proceedings

The High Court of Delhi initially quashed the detention orders on August 2, 2019, primarily because the detenues were already in judicial custody and there was no immediate possibility of their release. The High Court also noted that the Detaining Authority had not considered the retraction petition of one Shri Anand. However, the Supreme Court overturned this decision on November 22, 2019, and ordered the detenues to be taken back into custody. Following this, the Detaining Authority decided to wait for the Central Advisory Board’s report before considering the detenues’ representation, which led to the present writ petition.

Legal Framework

This case primarily revolves around the interpretation of Article 22(5) of the Constitution of India, which guarantees the right of a detained person to be informed of the grounds of their detention and to make a representation against it. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act), is also central to the case. Section 3(1) of the COFEPOSA Act empowers the Central Government, State Government, or specially empowered officers to issue detention orders.

Section 11 of the COFEPOSA Act allows for the revocation or modification of detention orders. Section 8 of the COFEPOSA Act provides for the constitution of Advisory Boards to review detention cases. The interplay between these provisions and the constitutional safeguards under Article 22(5) forms the core of the legal framework in this case.

The General Clauses Act, 1897, specifically Section 21, which deals with the power to rescind orders, is also relevant. The court examined how these provisions interact to determine the obligations of the detaining authority and the rights of the detenues.

Arguments

The petitioner argued that the Detaining Authority should have independently considered the representation made by the detenues without waiting for the Advisory Board’s report. They emphasized that the right to make a representation is a constitutional right under Article 22(5), which requires an independent assessment by the Detaining Authority. The petitioner contended that the delay in considering the representation violated the detenues’ rights. The petitioner also submitted that the Detaining Authority was wrong in waiting for the report of the Central Advisory Board.

The respondents, on the other hand, relied on the Supreme Court’s decisions in Golam Biswas v. Union of India [(2015) 16 SCC 177] and K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India [(1991) 1 SCC 476], arguing that when a matter is pending before the Central Advisory Board, the representation can be considered only after the Board’s report is received. They submitted that the Detaining Authority was justified in deferring consideration of the representation till the receipt of the opinion of the Central Advisory Board.

The respondents relied on K.M. Abdulla Kunhi to argue that it is proper for the government to await the report of the Board. They contended that the government’s consideration of the representation is to determine if the detention is in conformity with the law, and this can be done after receiving the Advisory Board’s report.

The petitioner’s main submission was that the Detaining Authority, in this case, a specially empowered officer, is obligated to consider the representation independently and cannot defer it until the Advisory Board’s report is received. The respondents argued that the Detaining Authority could wait for the Advisory Board’s report before considering the representation.

The petitioner cited Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51] to emphasize that the detaining authority must consider the representation independently, which was in contradiction to the view taken by the respondents.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues for consideration:

1. Whether the Detaining Authority was justified in deferring the consideration of the representation until the receipt of the opinion of the Central Advisory Board?
2. Whether the Detaining Authority ought to have considered the representation independently and without waiting for the report of the Central Advisory Board?
3. If the answer to the second question is yes, whether the time taken by the Detaining Authority from 27.11.2019 till 14.01.2020 could be characterized as undue and avoidable delay violating the constitutional rights of the detenues?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered various cases and legal provisions to address the issues at hand. These authorities were categorized by the legal points they addressed:

On the Issue of Independent Representation to the Detaining Authority:

• Ibrahim Bachu Bafan vs. State of Gujarat [(1985) 2 SCC 24] – Supreme Court of India: This case discussed the power of revocation of detention orders under Section 11 of the COFEPOSA Act and Section 21 of the General Clauses Act, 1897.
• State of Maharashtra and another vs. Smt. Sushila Mafatlal Shah [(1988) 4 SCC 490] – Supreme Court of India: This case examined whether a specially empowered officer is the detaining authority and if the detenu has a right to make a representation to that officer.
• Amir Shad Khan vs. L. Hmingliana [(1991) 4 SCC 39] – Supreme Court of India: This case discussed the authority to whom a representation must be made and the statutory backing for such authority.
• Kamleshkumar Ishwardas Patel vs. Union of India [(1995) 4 SCC 51] – Supreme Court of India: A Constitution Bench decision that clarified the right of a detenu to make a representation to the officer who made the detention order and overruled the decision in Sushila Mafatlal Shah.

On the Issue of Deferring Consideration of Representation:

• Pankaj Kumar Chakrabarty vs. The State of West Bengal [(1969) 3 SCC 400] – Supreme Court of India: A Constitution Bench decision that discussed the obligation of the government to consider a representation made by a detenu.
• Jayanarayan Sukul vs. State of West Bengal [(1970) 1 SCC 219] – Supreme Court of India: A Constitution Bench decision that laid down principles for considering representations of detenues.
• Haradhan Saha vs. The State of West Bengal [(1975) 3 SCC 198] – Supreme Court of India: A Constitution Bench decision that clarified the distinction between the consideration of representation by the government and the Advisory Board.
• Frances Coralie Mullin vs. W.C. Khambra [(1980) 2 SCC 275] – Supreme Court of India: This case emphasized the need for an independent consideration of the representation by the Detaining Authority.
• K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India [(1991) 1 SCC 476] – Supreme Court of India: A Constitution Bench decision that discussed the timing of consideration of representation in relation to the Advisory Board’s report.
• Golam Biswas vs. Union of India [(2015) 16 SCC 177] – Supreme Court of India: This case dealt with the failure to forward a representation to the Advisory Board and its impact on detention.

Legal Provisions:

• Article 22(5) of the Constitution of India: Guarantees the right of a detained person to be informed of the grounds of their detention and to make a representation against it.
• Section 3(1) of the COFEPOSA Act: Empowers the Central Government, State Government, or specially empowered officers to issue detention orders.
• Section 11 of the COFEPOSA Act: Allows for the revocation or modification of detention orders.
• Section 8 of the COFEPOSA Act: Provides for the constitution of Advisory Boards to review detention cases.
• Section 21 of the General Clauses Act, 1897: Deals with the power to rescind orders.

Treatment of Authorities

Judgment

The Supreme Court held that the Detaining Authority was not justified in deferring the consideration of the representation until the receipt of the opinion of the Central Advisory Board. The court emphasized that the Detaining Authority should have considered the representation independently, without waiting for the Advisory Board’s report. The court also found that the time taken by the Detaining Authority from 27.11.2019 till 14.01.2020 was an undue and avoidable delay that violated the constitutional rights of the detenues.

The Court clarified that a specially empowered officer who passes the order of detention has no statutory role to play at the stage when the report is received from the Advisory Board. The report is to be considered by the appropriate Government and not by the specially empowered officer. The court also noted that the report of the Advisory Board is meant only for the consumption of the appropriate Government and is to be kept confidential.

The Court distinguished between the role of the appropriate Government and the specially empowered officer. The Court noted that when K.M. Abdulla Kunhi was decided, the prevailing view was that the representation could be considered by the appropriate government itself and not separately by the specially empowered officer. However, the court stated that the law is now settled that a representation can be made to the specially empowered officer who had passed the order of detention and the representation has to be independently considered by such Detaining Authority.

The Court held that the principles laid down in paragraph 16 of the decision in K.M. Abdulla Kunhi would not be the governing principles for such specially empowered officer.

The Court allowed the Writ Petition, quashed the Detention Orders, and directed the detenues to be set at liberty.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The Supreme Court utilized various authorities to build its reasoning. Here’s how each authority was viewed:

• Ibrahim Bachu Bafan vs. State of Gujarat [(1985) 2 SCC 24] – *The court accepted that the authority making an order of detention would be entitled to revoke that order by rescinding it and that conferment of power under Section 11 of the COFEPOSA Act was done without affecting the power under Section 21 of the General Clauses Act, 1897.*
• State of Maharashtra and another vs. Smt. Sushila Mafatlal Shah [(1988) 4 SCC 490] – *The Court explicitly overruled this decision, stating that it did not lay down the correct law on whether a representation is required to be considered by the officer who made the detention order.*
• Amir Shad Khan vs. L. Hmingliana [(1991) 4 SCC 39] – *The court followed this decision which held that the authority to which the representation is addressed must have statutory backing.*
• Kamleshkumar Ishwardas Patel vs. Union of India [(1995) 4 SCC 51] – *The court relied heavily on this Constitution Bench decision, which clarified that a detenu has the right to make a representation to the officer who made the detention order, and that officer is obligated to consider it.*
• Pankaj Kumar Chakrabarty vs. The State of West Bengal [(1969) 3 SCC 400] – *The court followed this decision which held that there was a constitutional obligation to consider the representations irrespective of whether they were made before or after their cases were referred to the Advisory Board.*
• Jayanarayan Sukul vs. State of West Bengal [(1970) 1 SCC 219] – *The court followed this decision which laid down the principles for considering the representation of the detenus.*
• Haradhan Saha vs. The State of West Bengal [(1975) 3 SCC 198] – *The court followed this decision which clarified the distinction between the consideration of representation by the Government and by the Advisory Board.*
• Frances Coralie Mullin vs. W.C. Khambra [(1980) 2 SCC 275] – *The court followed this decision which emphasized the need for an independent consideration of the representation by the Detaining Authority.*
• K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India [(1991) 1 SCC 476] – *The court partially followed this decision but distinguished its applicability to specially empowered officers, stating that the principle of waiting for the Advisory Board’s report does not apply to them.*
• Golam Biswas vs. Union of India [(2015) 16 SCC 177] – *The court followed this decision which held that the failure to forward the representation to the advisory board and rejection of the same during the pendency of the proceedings before the Advisory Board would vitiate the detention.*

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the constitutional obligation to protect individual liberties and ensure procedural fairness. The court emphasized that the right to make a representation is a fundamental right under Article 22(5) of the Constitution, and any delay or inaction in considering such representation would be a violation of this right. The court also highlighted the importance of independent consideration by the Detaining Authority, separate from the Advisory Board’s opinion, to ensure that the detention is in conformity with the power under the law.

The court noted that the specially empowered officer has no role to play at the stage when the report is received from the Advisory Board, and therefore, there is no reason to wait for the report before considering the representation. The court’s reasoning was also influenced by the fact that the report of the Advisory Board is meant only for the consumption of the appropriate Government and is to be kept confidential.

The court was also concerned about the delay in considering the representation, which it characterized as an undue and avoidable delay that violated the constitutional rights of the detenues. The court’s decision was guided by the principle that the personal liberty of an individual is paramount, and any infringement of this liberty must be based on a fair and just procedure.

The Court also considered the fact that the specially empowered officer is not required to wait for the report of the Advisory Board.

Sentiment Analysis of Reasons

Fact:Law

Logical Reasoning

The Supreme Court’s logical reasoning for each issue is illustrated below:

Dissenting Opinion

Justice Hemant Gupta dissented from the majority opinion. He held that the Detaining Authority’s consideration of the representation after receiving the Advisory Board’s report was not improper. He stated that the Advisory Board’s report is a crucial step in the detention process, and the Detaining Authority can consider the representation in light of the Advisory Board’s opinion. He also stated that the representation of the detenue was forwarded to the Advisory Board and the same was considered by the Advisory Board. The dissenting opinion emphasized the importance of the Advisory Board’s role in the detention process and argued that the Detaining Authority is not required to consider the representation independently before the Advisory Board’s report.

Justice Gupta relied on the decision in K.M. Abdulla Kunhi (supra) to argue that the government can consider the representation after receiving the report of the Advisory Board. He did not agree with the view that the specially empowered officer must consider the representation independently before the Advisory Board’s report.

Key Points of Dissenting Opinion

Conclusion

The Supreme Court’s judgment in Ankit Ashok Jalan vs. Union of India (2020) is a significant decision that clarifies the obligations of Detaining Authorities in preventive detention cases. The court emphasized that the Detaining Authority must independently consider a detainee’s representation against their detention, without waiting for the Advisory Board’s report. This decision reinforces the constitutional safeguards provided under Article 22(5) of the Constitution and upholds the principle of procedural fairness in preventive detention laws.

The judgment also clarifies the distinction between the roles of the Detaining Authority and the appropriate Government. The Detaining Authority, particularly a specially empowered officer, must independently consider the representation, while the appropriate Government considers the Advisory Board’s report. This distinction ensures that the detainee’s right to make a representation is not merely a formality but a substantive right that must be duly considered.

The decision underscores the importance of timely consideration of representations to safeguard individual liberties. Any undue delay in considering the representation would be a violation of the detainee’s constitutional rights. This landmark judgment will serve as a guiding principle for future cases involving preventive detention and will help ensure that the constitutional rights of detainees are protected.