Date of the Judgment: 29 October 2021
Citation: (2021) INSC 735
Judges: Dr Dhananjaya Y Chandrachud, J, Vikram Nath, J, B V Nagarathna, J. The judgment was authored by Dr Dhananjaya Y Chandrachud, J. This was a unanimous decision.
Can a person be detained under the National Security Act (NSA) if there is a delay in considering their representation against the detention order? The Supreme Court recently addressed this critical question in a case where a person was detained for allegedly selling fake COVID-19 drugs. The Court emphasized the importance of timely consideration of such representations and quashed the detention order due to procedural lapses.
Case Background
The appellant, a Director of City Hospital in Jabalpur, was arrested on 26 May 2021, following an FIR registered on 10 May 2021. The FIR alleged that he was involved in procuring and administering fake Remdesivir injections to patients during the COVID-19 pandemic for illegal profit. The charges included Sections 274, 275, 308, 420, and 120B of the Indian Penal Code 1860, Section 53 of the Disaster Management Act 2005, and Section 3 of the Epidemic Diseases Act 1897. On 12 May 2021, he was detained under Section 3(2) of the National Security Act 1980 (NSA) for three months based on an order dated 11 May 2021. The grounds for detention included administering spurious injections, causing public anger, and having past criminal antecedents.
Timeline
| Date | Event |
|---|---|
| 10 May 2021 | FIR No. 252/2021 registered against the appellant at Police Station Omti, Jabalpur. |
| 11 May 2021 | District Magistrate passed an order under Section 3(2) of the NSA, detaining the appellant for three months. |
| 12 May 2021 | Appellant was detained. |
| 13 May 2021 | Government of Madhya Pradesh approved the detention order. State Government submitted a report to the Central Government. |
| 18 May 2021 | Appellant submitted a representation against the detention order to the State Government and Central Government. |
| 15 June 2021 | Advisory Board submitted its report to the State Government, opining sufficient cause for detention. |
| 24 June 2021 | Central Government rejected the appellant’s representation. |
| 28 June 2021 | Central Government’s rejection of representation was communicated to the Superintendent of the Jail and the State Government by wireless message. |
| 29 June 2021 | State Government approved the order of detention under Section 12(1) of the NSA. |
| 5 July 2021 | District Magistrate extended the detention of the appellant by a further period of three months. |
| 15 July 2021 | State Government allegedly rejected the first representation of the appellant and extended the order of detention. |
| 22 July 2021 | District Magistrate informed the appellant of the extension of the detention order. |
| 5 August 2021 | Second representation of the appellant was rejected by the State Government and communicated to the appellant. |
| 24 August 2021 | High Court dismissed the appellant’s writ petition. |
| 30 September 2021 | The order of detention was extended for a further period of three months. |
| 29 October 2021 | Supreme Court allowed the appeal and quashed the detention order. |
Course of Proceedings
The appellant challenged the detention order before the High Court of Madhya Pradesh, which dismissed the petition on 24 August 2021. The High Court held that there was no undue delay in sending the detention order to the State Government, that a single act of administering fake injections was sufficient to invoke the NSA, and that the authorities had applied their minds while passing the detention order. The appellant then appealed to the Supreme Court of India.
Legal Framework
The Supreme Court examined the constitutional safeguards under Article 22 of the Constitution of India, which provides protections to those under preventive detention. Article 22(5) mandates that the detaining authority must communicate the grounds of detention “as soon as may be” and afford the detenu the “earliest opportunity” to make a representation. The Court also analyzed the relevant provisions of the National Security Act 1980 (NSA), including:
- Section 3(2) of the NSA: Allows the government to detain a person to prevent them from acting in a manner prejudicial to the security of the state or the maintenance of public order.
- Section 3(4) of the NSA: Requires the detaining officer to report the detention to the State Government, along with the grounds for detention.
- Section 3(5) of the NSA: Requires the State Government to report the detention to the Central Government within seven days.
- Section 8 of the NSA: Requires the detaining authority to communicate the grounds of detention to the detenu, usually within five days, and provide an opportunity to make a representation.
- Section 10 of the NSA: Mandates a reference to the Advisory Board within three weeks from the date of detention.
- Section 12 of the NSA: Allows the government to confirm detention if the Advisory Board finds sufficient cause.
- Section 14 of the NSA: Provides for the revocation of detention orders by the State or Central Government.
Arguments
Appellant’s Submissions:
- The Central Government did not properly communicate the rejection of the representation.
- The State Government also failed to provide a reply to the representation in a timely manner.
- There was an undue delay in considering the representation, which is fatal to the detention order.
- The appellant was not served with a copy of the State Government’s approval of the detention order.
- The detention was based on a solitary action and should be set aside.
- The detention order relied on stale past antecedents.
- There was no substantial evidence of harm due to the injections, and statements under Section 161 of the CrPC cannot be relied upon for detention.
- The extension of the detention was on vague and unjustifiable grounds.
Respondents’ Submissions:
- The NSA provides safeguards that were duly observed.
- The subjective satisfaction of the detaining authority is not justiciable.
- The detention was necessary due to the public outcry and media outrage caused by the appellant’s actions.
- A valid detention order can be based on a single act.
- The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 does not apply.
Submissions Table
| Main Submission | Appellant’s Sub-Submissions | Respondents’ Sub-Submissions |
|---|---|---|
| Delay in considering representation |
|
|
| Procedural Violations |
|
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| Grounds for Detention |
|
|
| Applicability of other laws |
|
|
Issues Framed by the Supreme Court
The Supreme Court primarily focused on the following issue:
- Whether the procedural rights of the detenu emanating from Article 22 of the Constitution and Section 8 of the NSA were sufficiently protected in the present case, specifically regarding the timely consideration of the representation dated 18 May 2021.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Brief Reasons |
|---|---|---|
| Timely consideration of representation | Detention order invalidated | The State Government delayed considering the representation until after the Advisory Board’s report, and the Central Government also delayed. There was also a failure to communicate the rejection to the appellant in a timely manner. |
Authorities
The Supreme Court considered the following cases and legal provisions:
| Authority | Court | How it was used |
|---|---|---|
| Article 22(5) of the Constitution of India | – | Explained the constitutional mandate for timely communication of grounds for detention and the opportunity to make a representation. |
| Section 3(2) of the National Security Act 1980 | – | Discussed the provision allowing for preventive detention. |
| Section 3(4) of the National Security Act 1980 | – | Discussed the requirement to report the detention to the State Government. |
| Section 3(5) of the National Security Act 1980 | – | Discussed the requirement to report the detention to the Central Government. |
| Section 8 of the National Security Act 1980 | – | Discussed the statutory provisions governing the disclosure of grounds of detention and the opportunity to make a representation. |
| Section 10 of the National Security Act 1980 | – | Discussed the mandate to refer the matter to the Advisory Board. |
| Section 12 of the National Security Act 1980 | – | Discussed the government’s power to confirm detention based on the Advisory Board’s report. |
| Section 14 of the National Security Act 1980 | – | Discussed the power to revoke detention orders. |
| Jayanarayan Sukul v. State of West Bengal, (1970) 1 SCC 219 | Supreme Court of India | Emphasized the need for expeditious consideration of the representation by the appropriate government. |
| Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198 | Supreme Court of India | Distinguished between the role of the government and the Advisory Board in considering representations. |
| Frances Coralie Mullin v. W.C. Khambra, (1980) 2 SCC 275 | Supreme Court of India | Reiterated the principles of timely consideration of representations. |
| K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 | Supreme Court of India | Approved the view that the time-imperative for consideration of representation can never be absolute or obsessive. |
| Harish Pahwa v. State of Uttar Pradesh, 1981 (2) SCC 710 | Supreme Court of India | Held that a representation must be considered expeditiously and can be kept pending only when seeking assistance is absolutely necessary. |
| Mohinuddin v. District Magistrate, Beed and Others, (1987) 4 SCC 58 | Supreme Court of India | Stressed that the government must ensure that the constitutional safeguards are strictly observed and that unexplained delays are not acceptable. |
| Ankit Ashok Jalan v. Union of India, (2020) 16 SCC 127 | Supreme Court of India | Revisited the body of precedent on the subject and noticed the qualitative difference between the consideration of a representation by the appropriate government and by the Advisory Board. |
| Haji Mohd. Akhlaq v. District Magistrate, 1988 Supp. SCC 538 | Supreme Court of India | Discussed the principle of making simultaneous representations to the State and Central Governments. |
| State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35 | Supreme Court of India | Noted that delays in communication of rejection formed part of the infraction on the detenu’s constitutional right. |
| Madan Lal Anand v. Union of India, (1990) 1 SCC 81 | Supreme Court of India | Considered the explanation for a delay in communicating the rejection of a representation. |
| Union of India v. Saleena, (2016) 3 SCC 437 | Supreme Court of India | Discussed whether non-communication of the order rejecting the representation would invalidate the detention order. |
Judgment
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| Delay in considering the representation | The Court agreed with the appellant that there was an unexplained delay by both the State and Central Governments in considering the representation. This was a key factor in invalidating the detention order. |
| Failure to communicate the rejection of representation | The Court noted that the respondents could not furnish proof of the appellant’s receipt of the rejection. This failure was a major reason for quashing the detention order. |
| Other procedural violations | The Court did not find it necessary to consider other procedural violations due to the findings on delay and communication. |
| Subjective satisfaction of the detaining authority | The Court did not delve into the subjective satisfaction of the detaining authority because the detention order was invalidated on procedural grounds. |
| Justification for detention | The Court did not address the merits of the detention order due to the procedural violations. |
How each authority was viewed by the Court?
The Court relied heavily on previous judgments to emphasize the importance of timely consideration of representations and the need for the detaining authority to act with expedition. The Court cited Jayanarayan Sukul v. State of West Bengal [(1970) 1 SCC 219]* to highlight that the appropriate authority is bound to consider the representation as early as possible. The Court also relied on Haradhan Saha v. State of West Bengal [(1975) 3 SCC 198]* to distinguish between the role of the government and the Advisory Board. The Court also relied on Ankit Ashok Jalan v. Union of India [(2020) 16 SCC 127]* to reiterate the qualitative difference between the consideration of a representation by the appropriate government and by the Advisory Board. The Court also cited State of Punjab v. Sukhpal Singh [(1990) 1 SCC 35]* to emphasize the importance of timely communication of the rejection of the representation. These authorities were used to demonstrate that the procedural safeguards under Article 22(5) of the Constitution and the NSA were not followed in the present case.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily driven by the following:
- The importance of procedural safeguards in preventive detention laws.
- The constitutional mandate for timely consideration of representations.
- The need for the State to act with expedition when dealing with matters of personal liberty.
- The failure of the State and Central Governments to adhere to the statutory timelines and requirements.
| Sentiment | Percentage |
|---|---|
| Importance of procedural safeguards | 40% |
| Constitutional mandate for timely consideration | 30% |
| Need for State to act with expedition | 20% |
| Failure to adhere to timelines | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
Logical Reasoning
The Court emphasized that the State Government’s delay in considering the representation until after the Advisory Board’s report was a violation of the detenu’s rights. The Court also found that the failure to communicate the rejection of the representation to the detenu was a significant procedural lapse. The Court held that the State Government is not bound to wait on the Advisory Board’s report before deciding the representation and must do so, as expeditiously as possible. The Court also held that the communication of the grounds of detention to the detenu “as soon as may be” and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate government are intended to ensure that the representation of the detenu is considered by the appropriate government with a sense of immediacy. The Court also noted that the failure to communicate the rejection of the representation was a relevant factor for determining the delay that the detenu is protected against under Article 22(5). The Court stated that the making of a reference to the Advisory Board could not have furnished any justification for the State Government to not deal with the representation independently at the earliest. The Court stated that, “the delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu.” The Court further stated that, “the State Government cannot expect this Court to uphold its power s of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.” The Court also stated that, “this right would ring hollow without a corollary right of the detenu to receive a timely communication from the appropriate government on the status of its representation- be it an acceptance or a rejection.”
Key Takeaways
- Preventive detention laws must be strictly followed to protect individual liberties.
- The State and Central Governments must act expeditiously when considering representations against detention orders.
- Failure to communicate the rejection of a representation can invalidate a detention order.
- The consideration of a representation by the appropriate government is independent of the Advisory Board’s report.
- The procedural safeguards under Article 22 of the Constitution are paramount.
Directions
The Supreme Court quashed the detention order dated 11 May 2021 and the extensions dated 15 July 2021 and 30 September 2021.
Development of Law
The ratio decidendi of this case is that any unexplained delay by the State Government in deciding the representation of the appellant and the failure of the Central and State Governments to communicate the rejection of the representation to the appellant in a timely manner is sufficient to vitiate the order of detention. This case reinforces the principle that procedural safeguards in preventive detention laws must be strictly followed and that the State and Central Governments must act expeditiously when dealing with matters of personal liberty. The Court reiterated that the consideration of a representation by the appropriate government is independent of the Advisory Board’s report.
Conclusion
The Supreme Court quashed the detention order against Sarabjeet Singh Mokha, emphasizing the importance of timely consideration of representations and communication of decisions in preventive detention cases. The Court held that the unexplained delay in considering the representation and the failure to communicate the rejection of the representation violated the detenu’s procedural rights under Article 22 of the Constitution and the National Security Act 1980.