Supreme Court of India
ADDITIONAL SECRETARY TO THE GOVERNMENT OF INDIA AND ORS .versusSMT. ALKA SUBHASH GADIA AND ANR.
- Citation
- 1990 INSC 392
- Decided
- 20 December 1990
- Disposal
- Appeal(s) allowed
- Bench
- A M AHMADI
Holding
The Court held that the High Court’s order directing the detaining authority to serve the detention order, its grounds and supporting documents to a proposed detenu before his surrender was ultra vires; the court quashed those orders and allowed the appeals.
Summary
The Supreme Court examined a detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) against the husband of Smt. Alka Subhash Gadia, who could not be served with the order because he was absconding. The wife filed a writ petition challenging both the detention order and a subsequent show‑cause notice under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). The Bombay High Court directed the authorities to furnish the detention order, its grounds and supporting documents to the proposed detenu and held the officers in contempt for non‑compliance. On appeal, the Supreme Court held that while Articles 226 and 32 give courts wide jurisdiction to review detention orders, the courts must observe self‑imposed restraints and cannot compel the detaining authority to serve the order and grounds to a proposed detenu before he surrenders. Consequently, the High Court’s directions and contempt notice were illegal and were quashed, and the appeals were allowed.
Issues considered
- The extent of the courts' jurisdiction under Articles 226 and 32 to review a preventive detention order before its execution.
- Whether a proposed detenu who has not been served with the detention order is entitled to receive the order, grounds and supporting documents for pre‑execution challenge.
- Whether the High Court's direction to furnish the detention order and the contempt notice were within its powers.
Legislation cited
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1)
- Constitution of Indias. Articles 14, 19, 21, 22, 32, 226
- Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976s. 2(b), s. 6(1)
Subjects
preventive detentionjudicial reviewArticle 21Article 22COFEPOSASAFEMAhabeas corpuspre‑execution challengeconstitutional lawfundamental rightscontempt of court
Judgment
ADDITIONAL SECRETARY TO THE GOVERNMENT OF
... A
INDIA AND ORS .
v.
SMT. ALKA SUBHASH GADIA AND ANR.
DECEMBER 20, 1990
B
[A.M. AHMADI, P.B. SAWANT AND S.C. AGRAWAL, JJ.]
Constitution of India, 1950: Articles 14, 19, 21 and 22-Liberty
of a person-Deprival of-Whether permissible without apprising
grounds of arrest-Whether State required to disclose facts in advance.
Articles 32 and 226--Jurisdictionary powers of judicial review- c
Whether Courts could refuse to exercise-Non-interference with the
termination order at pre-execution stage-Whether amounts to aban-
donment of power and denial to the proposed detenu remedy of judicial
review and right to challenge the order.
D
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974: Section 3( /)-Detention order-Whether could be
challenged before arrest of proposed detenu-Whether proposed detenu
or somebody on his behalf entitled to the order prior to its execution at
least to verify whether it could be challenged on limited grounds
available-Whether the order and grounds to be served on the proposed E
detenu in advance.
An order of detention passed against the first respondent's
husband under Section 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 could not be served on
the proposed detenu as he was absconding. Hence a declaration was F
made that he was a person who fell within the category mentioned in
Section 2(b) of the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976. Thereafter, a notice was issued to
him under sub-section (1) of section 6 of the SAFEMA to show cause as
to why the properties mentioned in the schedule to the notice should not
be forfeited to the Central Government. A copy of the notice along with G
the schedule and the copy of the reasons for forfeiture was also sent to
the first respondent.
The first respondent filed writ petition in the High Court chal-
lenging the detention order as well as the show cause notice. 1'he High
Court held that the writ petition was maintainable for challenging the H
583
584 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
A detention order even though the detenu was not served with the order
and had thus not surrendered to the authorities, that the detention
order, the grounds of detention, and the documents relied upon for
passing the detention order be furnished to the detenu, and to the
counsel for the first respondent and that they should also be produced
before the court.
B
A day before the matter was to come for directions an affidavit
was filed on behalf of the appellants stating that under Article 22(5) of
the Constitution the grounds of detention had to be given to the person
when he was detained, and therefore, the detaining authority could not
be compelled to furnish the documents to anybody else other than the
detenu, after he was detained. However, the authority was willing to
c produce the documents for the perusal of the Court without showing them
first to the first respondent. Finding that the appellants had not made any
application for any extension in time to carry out the orders of the
Court, nor made any statement expressing their difficulty to comply
with the order, the High Court held that the officers were guilty of
D contempt of court, and directed the matter to be listed for taking
appropriate action for contempt of court. At that stage, Special Leave
Petitions were filed before this Court.
It was contended on behalf of the appellants that since the deten-
tion law was constitutionally valid, the order passed under it could be
E challenged only in accorJance with the provisions of, and the procedure
laid down, by it, and the High Court and this Court should not exercise
their extraordinary jurisdiction in a manner which would enable a
party to by-pass the machinery provided by the law, that unlike the
order passed under other laws, the detention order if stayed or not
allowed to be executed would be frustrated and the very object of the
F detention law would be defeated, and therefore, the detention order
should in no case be allowed to be challenged before it was executed and
the detenu was taken in custody; besides the detention jurisdiction
being essentially a suspicion jurisdiction, the concept of complete
justice was alien to detention law; the liberty guaranteed by Article 21
of the Constitution was subject to the provisions of Article 22 and,
G therefore, in a detention matter the provisions of the two Articles could
not be separated; so long as the detention law was intra-vires the Con-
stitution, and it stated that the detenu should be informed of the
grounds of his detention only after he lost his liberty, the detenu conld
not by resort to Article 226, by-pass the provisions of that law or invite
the High Court to do so and secure the grounds before submitting to the
H order; the detention law in question had not taken away the judicial
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA 585
review of the order passed under it, but only postponed it by implica- A
lion and the Courts had done so by a self-regulated procedure consis-
tent with the object of the law; and the judicial review under the deten-
tion law had to be post-decisional, that the law by itself did not place
any restriction on the writ-jurisdiction of the Court; and the restriction
exercised by the Court was self-imposed and was not inconsistent with
the basic structure of the Constitution. B
On behalf of the respondent it was contended, that Article 22 was
an additional protection ofliberty which was guaranteed by Articles 14,
19, and 21 of the Constitution; an individual had an absolute right to
liberty and, therefore, the burden was on the State to satisfy that the
deprivation of the liberty was necessary in the interests of the general C
public, security of the State, public order etc. before apprising him of
the grounds of his arrest; and consequently, it must place all its cards
before the Court before his arrest, particularly when he approached the
Court making a grievance against the order; that the extent of the right
to life and liberty under Article 21 of the Constitution had been
expanded by this Court to include not only the right to live but also the D
right to live with dignity, which was affected the moment the person lost
his liberty before knowing the reasons for the same or having an
opportunity to challenge them; a person could be deprived of his life
and liberty only under a valid law which laid down a fair procedure for
deprivation of the liberty of the individual; and the State could not be
said to have adopted a fair procedure for arrest of a person when it E
refused to disclose the facts on the basis of which it proposed to arrest
him; and that judicial review being a part of the basic structure of the
Constitution the power of the High Court under Article 226 of the
Constitution could not be circumscribed in any way by any law, includ-
ing detention law; and as such it could be challenged at any stage, and
the artificial distinction between pre-decisional and post-decisional F
challenge was inconsistent with and alien to, the wide powers conferred
under Articles 32 and 226 of the Constitution, and that this Court had
in fact, interfered with the detention orders before the detenus had
submitted to them.
Allowing the appeals, this Court, G
HELD: 1.1. It is well settled that the fundamental rights under
Chapter III of the Constitution are to be read as a part of an integrated
scheme. They are not exclusive of each other but operate, and are,
subject to each other. The action complained of must satisfy the tests of
all the said rights so far as they are applicable to individual cases. In H
586 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
particular, Article 22(5) is not the sole repository of the detenu's rights.
A
His rights are also governed hy the other fundamental rights, particu-
larly those enshrined in Articles 14, 19, and 21. Hence, while examining
action resulting in the deprivation of the liberty of any person, the
limitations on such action imposed hy the other fundamental rights,
where and to the extent applicable have to he borne in mind. [592F-G, 593B]
B
Rustom Cavasjee Cooperv. Union of India, [1970] 3 SCR 530 and
Maneka Gandhi v. Union of India, [1978] 2 SCR 621, relied on.
1.2 While Article 21 permits the State to deprive a person of his
life or personal liberty, provided it is done strictly according to proce-
dure established hy law, this permission is expressly controlled by Arti-
c cle 22 in cases both of punitive and preventive detention. By law or
procedure is, of course, meant validly enacted law or procedure. Thus,
the provisions of Articles 21 and 22 read together, make it clear that a
person can he deprived of his life or personal liberty according to proce-
dure established by law, and if the law made for the purpose is valid,
D the person who is deprived of his life or liberty has to challenge his
arrest or detention, as the case may be, according to the provisions of
the law under which he is arrested or detained. [593C-D, 594DJ
1.3 Therefore, in the face of the clear provisions of the Constitu-
tion and of the valid Act, it is not open to contend that the provisions of
E Articles 14, 19 and 21 of the Constitntion prevent a person being
deprived of his liberty without first apprisb1g him of the grounds of his
arrest, and that since the State has all the facts in its possession which
require the arrest and detention of the person, it most first disclose the
said facts before depriving him of his liberty. The provisions of Article
22 of the Constitution and of the Act made thereunder permit the State
F to arrest and detain a person without first disclosing the grounds, even
though they are in its possession before or at the time of his arrest. I608F-G]
1.4 However vital and sacred the liberty of the individual, the
responsible framers of the Constitution, although fully conscious of its
implications, have made a provision for making a law which may dep-
G rive an individual of his liberty without first disclosing to him the
grounds of such deprivation. I609D)
2.1 Denial of the right to the proposed detenu to challenge the
detention order and the grounds on which it is made before he is taken
in custody does not amount to denial of remedy of judicial review of the
H order because there is a difference between the existence of power and
its exercise. [609E-F]
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA 587
2.2 Neither the Constitution, including the provisions of Article A
22 thereof, nor the COFEPOSA place any restriction on the powers of
the High Court and this Court to review judicially the order of deten-
tion. The powers under Articles 226 and 32 are wide, and are untram·
melled by any external restrictions, and can reach any executive order
resulting in civil or criminal consequences. However, the Courts have
B
over the years evolved certain self-restraints for exercising these
powers. They have done so in the interests of the administration of
justice and for better and more efficient and informed exercise of the
said powers. These self-imposed restraints are not confined to the re-
view of the orders passed under detention law only. They extend to the
orders passed and decisions made under all laws. [609G-H, 610A]
c
2.3 It is in pursuance of this self-evolved judicial policy and. in
conformity with the self-imposed internal restrictions that the Courts
insist that the aggrieved person first allow the due operation and
implementation of the concerned law and exhaust the remedies pro-
vided by it before approaching the High Court and this Court to invoke
D
their discretionary extraordinary and equitable jurisdiction under Arti·
cles 226 and 32 respectively. That jurisdiction by its very nature is to be
used sparingly and in circumstances where no other efficacious remedy
is available. If in every case a detenu is pennltted to challenge and seek
the stay of the operation of the order before it is executed, the very
purpose of the order and of the law under which it is made will be
frustrated since such orders are in operation only for a limited period. E
The court~ have the necessary power to entertain grievances against any
detention order prior to its execution, and they have used it in proper
cases, although such cases have been few and the grounds on which the
courts have interfered with them are necessarily very limited in scope
and number, viz., where the courts are prima facie satisfied (i) that the
order is not passed under the Act under which it is purported to have F
been passed, (ii) that it is sought to be executed against a wrong person,
(iii) that it is passed for a wrong purpose, (iv) that it is passed on vague,
extraneous and irrelevant grounds or (v) that the authority which pas-
sed it had no authority to do so. The refusal by the courts to use their
extraordinary powers of judicial review to interfere with the detention
orders prior to their execution on any other ground does not amount to G
abandonment of the said pliwer or to their denial to the proposed
detenu, but prevents their abuse and the perversion of the law. It is
always open for the detenu or anyone on bis behalf to challenge the
detentfon 11rder by way of habeas corpus petition on any ground avail·
able to him. [610A-H]
H
588 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
2.4 The judicial review of the detention order is always available.
A
This applies also to the cases under other laws. But in a detention case,
the stage at which the judicial review is made by the Court only stands
deferred till after the order is executed. A ground on which a detention
order is challenged which requires investigation and cannot be
adjudicated without hearing the other side and without proper mate-
B rial, has necessarily to await decision till the final hearing. In snch cases
the operation of the order of detention by its very nature cannot be
stayed pending the final outcome. The only proper conrse in such cases
is to hear the petition as expeditiously as possible. [611A-B]
3. The detenu is not entitled to the order of detention prior to its
execution even to verify whether it can be challenged at its pre-
...
c execution stage on the limited grounds available, for the reasons that (1)
the Constitution and valid law made thereunder do not make any provi-
sion for the same. On the other hand, they permit the arrest and deten-
tion of a person without furnishing to the detenu the order and the
grounds thereof in advance, (2) when the order and the grounds are
D served and the detenu is in a position to make out prima facie the
limited grounds on which they can be successfully challenged, the
courts, have power even to grant bail to the detenu pending the final
hearing of his petition. Alternatively, the Conrt can and does hear such
petition expeditiously to give the necessary relief to the detenu. (3) In
the rare cases where the detenu before being served with them learns of
E the detention order and the gronnds on which it is made, and satisfies
the Court of their existence by proper affirmation, the Court does not
decline to entertain the writ petition even at the pre-execution stage, of
course, on the very limited grounds stated above, though the Court,
even in such cases, is not obliged to interfere with the order at that stage
and may insist that the detenu should first submit to it. It will, however,
F depend on the facts of each case. Thus, the courts have power to
interfere with the detention orders even at the pre-execution stage but
they are not obliged to do so nor will it be proper for them to do so save
in exceptional cases. Much less can a detenu claim snch exercise of
power as a matter of right. The discretion is of the Court and it has to be
exercised judicially on well-settled principles. [611C-HJ
G
In the Instant case, the proposed ·detenu is absconding and had
been evading the service of the detention order. The first respondent
who is his wife has sought to challenge the said order because the
show-cause notice under sub-section (1) of Section 6 of the SAFEMA
was issued to him, a copy of which is also seut to her. Thus, the assis-
H lance of the High Court under Article 226 of the Constitution is sought
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA 589
by the first respondent on behalf of the detenu to secure the detention A
order with a view to defend the proceedings under the SAFEMA. In
other words, the proposed detenu is trying to secure the detention order
indirectly without submitting to it. Moreover, he is also trying to secure
the grounds of detention as well as the documents supporting them
which he cannot get unless he submits to the order of detention. No B
prima facie case is made out for challenging the detention order, which
would impel the Court to interfere with it at this pre-execution stage.
The High Court, disregarding the law on the subject and the long-
settled principles on which alone it can interfere with the detention
order at pre-execution stage, has directed the authorities not only to
• furnish to the detenu the order of detention but also the grounds of
detention and the documents relied upon for passing the detention c
order. [612B-EJ
In the circumstances, both the orders of the High Court directing
the appellants to furnish to the detenu or to the first respondent or her
counsel the order of detention, the grounds of detention and the docu' 0
meuts supporting them as well as the contempt notice are clearly illegal
and unjustified and they are accordingly quashed. [613E-F]
Special Reference No. I of 1964 [1965] I SCR 492; Dwarkanath,
Hindu Undivided Family v. Income-Tax Officer, Special Circle,
Kanpur & Anr., [1965] 3 SCR 536; State of Bihar v. Rambalak Singh E
"Balak" & Ors., AIR 1966 SC 1441; Khudiram Das v. The State of West
Bengal & Ors., [1975] 2 SCR 832 at 842; Francis Coralie Mullin v.
Administrator, Union Territory of Delhi & Ors., [1981] SCC 608; Smt.
Poonam Lata v. M.L. Wadhwan & Ors., [1987] II SCR. 1123 and
S.M.D. Kiran Pasha v. The Government of Andhra Pradesh & Ors.,
JT (1989) 4 SC 366, referred to.
F
Minerva Mills Ltd. v. Union of India & Ors., [1981] l SCR 206;
S.P. Sampath Kumar v. Union of India & Ors., [1987] l SCC·l24 and
P. Sambamurthy & Ors. v. State of Andhra Pradesh & Anr., [1987] 1
sec 362, referred to.
G
Jayantilal Bhagwandas Shah etc. v. State of Maharashtra, [1981] l
Cr. LJ 767; Abdul Aziz Mohammad v. Union of India, [1984] Cr. LJ
1307; Omar Ahmed Ebrahim Noormani v. Union of India & Ors.,
[1984] Cr. W. 1915; Yogesh Shanti/al Choksi v. Home Secretary,
Government of Kera/a & Anr.. [1983] Cr. LJ 393 and Simmi v. State of
U.P. & Ors., [1985] All. LJ 598, referred to. H
590 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal appeals
Nos. 440-441of1989.
From the Judgment and Order dated 27.6.89 & 30.6.89 of the
Bombay High Court in Crl. W. P. No. 489 of 1989 & Crl. Application
No. 1347 of 1989.
B
Kapil Sibal, Additional Solicitor General, A.S. Rao, C.V.S. Rao
and Ms. Sushma Suri for the Appellants.
R.K. Jain, Madhu Kotwal, Darshan Singh, Praveen Kumar,
c
A.S. Bhasme, and V.N. Patil for the Respondents.
The Judgment of the Court was delivered by
-
SAWANT, J. These appeals are directed against the orders
dated June 27 and June 30, 1989 passed by the Bombay High Court in
Criminal Writ Petition No. 489 of 1989 and Criminal Application No.
D 1347 of 1989 respectively. An order of detention was passed on 13th
December, 1985 against the first respondent's husband, Subhash
Chander Gadia under Section 3 (1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act (hereinafter
referred to as the "COFEPOSA"). He could not, however, be served
with the said order as he was absconding. Hence a declaration was
E made that he was a person who fell within the category mentioned in
Section 2 (b) of the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976 (hereinafter referred to as the
"SAFEMA"). Thereafter, a notice dated March 31, 1987 was issued to
him under sub-section (1) of Section 6 of the SAFEMA to show cause
as to why the properties mentioned in the schedule to the said notice
F should not be forfeited to the Central Government for reasons
recorded in the accompaniment. A copy of the notice along with the
schedule of the properties and the copy of the reasons for forfeiture of
the property was also sent to the first respondent by letter of February
27, 1989.
G 2. The first respondent filed the aforesaid writ petition in the
High Court challenging the detention order of December 13, 1985 as
well as the show cause notice of March 31, 1987. The High Court by its
impugned decision held that the writ petition was maintainable for
challenging the detention order even though the detenu was not served
with the order and he had thus not surrendered to the authorities. The
H High Court further directed that the detention order, the grounds of
r
SECY. TO GOVT. OF !Nl)IA v. SMT. A.S. GADIA [SAWANT, J.] 591
detention, and the documents relied upon for passing the detention
A
order be furnished to the detenu and that they should also be produced
before the court. The High Court also directed the authorities to
supply the said documents to the counsel for the first respondent. The
said order was passed on June 27, 1989 and the authorities were
directed to furnish the documents to the first respondent by 5.30 p.m.
on June 29, 1989. Thereafter, the matter was directed to stand over till B
July 3, 1989 to enable the first respondent to consider whether any
amendment to the writ petition was required. The Court also directed
that the matter be posted for further direction on June 30, 1989.
3. The Assistant Director of Enforcement filed an affidavit on
June 29, 1989 stating that under Article 22(5) of the Constitution, the
grounds of detention have to be given to the person when he is C
detained. Since even the constitutional mandate did not go further
than that, the detaining authority could not be compelled to furnish
the documents to anybody else other than the detenu after he is
detained. The authority also showed its willingness to produce the
documents for the perusal of the High Court without showing them D
first to the first respondent.
4. The matter came up before the learned Judges on June 30
1989. The learned Judge found that no application was made for any
extension in time to carry out the orders of the Court nor was any
statement made that it was difficult to comply with the order. The E
learned Judges, therefore, held that the officers were guilty of con-
tempt of court and directed the matter to be listed on July 3, 1989 to
take appropriate action for contempt of court. It is at that stage that
the Special Leave Petitions giving rise to the present appeals were filed
before this Court. This Court issued notice on the special leave peti-
tions and granted stay of the High Court's direction, pending the F
notice. By another order of July 21, 1989, this Court admitted the
special leave petitions and directed the appeals to be listed in that last
week of August 1989. By their order of April 5, 1990, the two learned
Judges of this Court directed that since the appeals involved questions
of great public interest and importance, they should be referred to a
bench of three Judges. That is how the matter has come before us. G
5. The neat question of law that falls for consideration is
whether the detenu or anyone on his behalf is entitled to challenge the
detention order without the detenu submitting or surrendering to it.
As a corollary to this question, the incidental question that has to be
answered is whether the detenu or the petitioner on his behalf, as the H
592 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
case may be, is entitled to the detention order and the grounds on
A which the detention order is made before the detenu submits to the
order.
These questions may arise for consideration also when an order
forfeiting the property as a conasequence of the detention order as in
B the present case, is passed, and when the detention order is inciden-
tally challenged to question the validity of the order of forfeiture of the
property.
6. The questions have assumed much importance because rely-
ing upon some judgments of this Court and of some of the High
Courts. writ petitions are filed as a matter of course to challenge the
c detention orders and to obtain interim reliefs restraining the authori-
ties from enforcing them without surrendering to them, thus frustrat-
ing the orders and defeating the very purpose of the detention law.
According to the learned Additional Solicitor General appearing for
the appellant-detaining authority, the number of such petitions has
D grown in volume recently and when, as in the present case, the
authorities insist on the detenus first submitting to the order they are
faced with the contempt action. It has, therefore, become necessary to
review the law on the subject.
7. In order to answer the questions set out above, it is necessary
E to examine the relevant provisions of the Constitution which permit
preventive detention of an individual. After the decision of this Court
in Rustom Cavasjee Cooper v. Union of India, [1970] 3 SCR 530 which
is otherwise known as the Bank Nationalisation case and in Maneka
Gandhi v. Union of India, [( 1978) 2 SCR 621], it is now well-settled (if
ever there was any doubt) that the fundamental rights under Chapter
F III of the Constitution are to be read as a part of an integrated scheme.
They are not exclusive of each other but operate, and are, subject to
each other. The action complained of must satisfy the tests of all the
said rights so far as they are applicable to individual cases. It is not
enough, that it satisfies the requirements of any one of them. In
particular, it is well-settled that Article 22(5) is not the sole repository
G of the detenu's rights. His rights are also governed by the other funrla-
mental rights particularly those enshrined in Articles 14, 19 and 21.
Article 14 guarantees to all persons equality before the law and equal
protection of the laws. Articles 19, 20, 21and22 are grouped under the
broad heading "Right to Freedom" Article 19 is breached if any citi-
zen is deprived whether, temporarily or permanently, of any of the
H rights which are mentioned therein. Although Article 19 confers free-
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA [SAWANT, J.] 593
doms mentioned therein only on citizens, neither Article 14 nor Arti-
A
cles 20, 21 and 22 are confined to the protection of freedoms of citizens
only. They extend the relevant freedoms even to non-citizens. The
. freedoms given to the citizen by Article 19 are, as if further sought to
be guaranteed by Articles 20, 21 and 22 in particular. Hence while
examining action resulting in the deprivation of the liberty of any
person, the limitations on such action imposed by the other fundamen- B
tal rights where and to the extent applicable have to be borne in mind.
8. We are not concerned in the present case directly with Article
20 but with Articles 21and22. Article 21 has two parts. The first part
states that no person shall be deprived of his life or personal liberty.
The second part enacts an exception to the first part by stating that if a
person is to be deprived of his life and liberty, it will be done strictly c
according to procedure established by law. By "law" or by "proce-
dure" is of course, meant validly enacted law and procedure. There
are many facets of Article 21 but their discussion need not detain us
he.re. The permission given to the State by Article 21 to deprive a
person of his liberty according to procedure established by law is D
expressly controlled by Article 22 in cases both of punitive and preven-
tive detention. In case of detention other than preventive detention,
the provisions of its sub-clauses ( 1) and (2) apply wheres in case of
preventive detention, the provisions of its sub-clauses (4) to (7) come
into play. Sub-clause ( 1) states that when a person is arrested, he shall
be informed, as soon as may be, of the grounds of his arrest and that he E
shall be given the right to consult and be defended by a legal
practitioner of his choice. The second safeguard provided for the
person is that he shall be produced before the nearest magistrate
within a period of 24 hours of his arrest. These two safeguards are not
available to a person who for the time being is an enemy alien or who is
arrested or detained under a preventive detention law. Needless to say F
that even this arrest and detention has to be according to a valid
procedure established by a valid law.
9. As regards the person who is detained under preventive
detention law, as stated above, it is the safeguards contained in sub-
clauses (4) to (7) of Article 22 which are an exception to sub-clauses G
(1) and (2) thereof, which come into play. Sub-clause (4) states that
the preventive detention law shall not provide for the detention of a
person for a period longer than three months without his having to be
produced before the magistrate as is the requirement of sub-clause (2).
However, if he is to be detained beyond the period of three months, it
can be done so, only if the Advisory Board mentioned therein reports H
594 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
,.
before the said period of three months, that there is, in its opinion,
A
sufficient cause for such detention. It further states that even if the
Advisory Board so reports, the person cannot be detained beyond the
maximum period prescribed in the law of detention. The sub-clause
B
also lays down that the law of detention must be a law passed by the
Parliament laying down both (a) the maximum period for which a
person may be detained without obtaining the opinion of the Advisory
Board, (b) the maximum total period for which a person may be
-
detained preventively and (c) the procedure to be followed by the
Advisory Board in an inquiry before it. If the law so enacted provides
for detention of a person for longer than three months without obtain-
ing the opinion of the Advisory Board then the law must further
specify both the circumstances under which and the class or classes of
c cases in which the person may be so detained preventively.
10. The provisions of Articles 21 and 22 read together, there-
fore, make it clear that a person can be deprived of his life or personal
liberty according to procedure established by law, and if the law made
D for the purpose is valid, the person who is deprived of his life or liberty
has to challenge his arrest or detention, as the case may be, according
to the provisions of the law under which he is arrested or detained.
This proposition is valid both for punitive and preventive detention.
The difference between them is made by the limitations placed by
sub-clauses (1) and (2) on the one hand and sub-clauses (4) to (7) on
E the other of Article 22, to which we have already referred above. What
is necessary to remember for our purpose is that the Constitution
permits both punitive and preventive detention provided it is accord-
ing to procedure established by law made for the purpose and if both
the law and the procedure laid down by it, are valid.
F 11. This is not to say that the jurisdiction of the High Court and
the Supreme Court under Aeticle 226 and 32 respectively has no role to
play once the detention-punitive or preventive-is shown to have been
made under the law so made for the purpose. This is to point out the
limitations which the High Court and the Supreme Court have to
observe while exercising their respective jurisdiction in such cases.
G These limitations are normal and well-known, and are self-imposed as
a matter of prudence, propriety, policy and practice and are observed
while dealing with cases under all laws. Though the Constitution does
not place any restriction on these powers, the judicial decisions have
H
evolved them over a period of years taking into consideration the
nature of the right infringed or threatened to be infringed, the scope
and object of the legislation or of the order or decision complained of,
I
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA [SAWANT, J.] 595
the need to balance the rights and interests of the individual as against
those of the society, the circumstances under which and the persons by A
whom the jurisdiction is invoked, the nature of relief sought etc. To
illustrate these limitations: (i) in the exercise of their discretionery
jurisdiction the High Court and the Supreme Court do not, as Courts
of Appeal or Revision, correct mere errors of law or of fact; (ii) the
resort to the said jurisdiction is not permitted as an alternative remedy B
for relief which may be obtained by suit or other mode prescribed by
statute. Where it is open to the aggrieved person to move another
Tribunal or even itself in another jurisdiction for obtaining redress in
the manner provided in the statute. The Court does not, by exercising
the writ-jurisdiction, permit the machinery created by the statute to be
by-passed; (iii) it does not generally enter upon the determination of
questions which demand an elaborate examination of evidence to c
establish the right to enforce which, the writ is claimed; (iv) it does not
interfere on the merits with the determination of the issues made by
the authority invested with statutory power, particularly when they
relate to matters calling for expertise, unless there are exceptional
circumstances caJling for judicial intervention, such as, where the D
determination is ma/a fide or is prompted by extraneous considera-
tions or is made in contravention of the principles of natural justice or
any constitutional provision; (v) the Court may also intervene where
(a) the authority acting under the concerned Jaw does not have the
- requisite authority or the order which is purported to have been passed
under the Jaw is not warranted or is in breach of the provisions of the E
concerned law or the person against whom the action is taken is not the
person against whom the order is directed; or (b) where the authority
has exceeded its powers or jurisdiction or has failed or refused to
exercise jurisdiction vested in it; or (c) where the authority has not
applied its mind at all or has exercised its power dishonestly or for an
improper purpose; (vi) where the Court cannot grant a final relief, the F
Court does not entertain petition only for giving interim relief. If the
Court is of opinion that there is no other convenient or efficacious
remedy open to the petitioner, it will proceed to investigate the case
on its merits and if the Court finds that there is an infringement of the
petitioner's legal rights, it wiJI grant final relief but will not dispose of
the petition only by granting interim relief. (vii) where the satisfaction G
of the authority is subjective, the Court intervenes when the authority
has acted under the dictates of another body or when the conclusion is
I arrived at by the application of a wrong test or misconstruction of a
statute or it is not based on material which is of a rationally probative
value and relevant to the subject matter in respect of which the autho-
rity is to satisfy its~lf. If again the satisfaction is arrived at by taking H
596 SUPREME COURT REPORTS [!990] Supp. 3 S.C.R.
A into consideration material which the authority properly could not, or
by omitting to consider matters which it ought to have, the Court
interferes with the resultant order. (viii) In proper cases the Court also
-
intervenes when some legal or fundamental right of the individual is
seriously threatened, though not actually invaded.
B 12. These limitations are not only equally observed by the High
Court and the Supreme Court while exercising their writ jurisdiction in
preventive detention matters, but in view of the object for which the
detention law is enacted and is permitted by the Constitution to be
enacted, the Courts are more circumspect in observing them while
exercising their said extraordinary equitable and discretionery power
C in these cases. While explaining the nature of the detention law and of
the orders passed under it and the scope of the powers of the Court in
these matters, this Court has often emphasised the distinction betwen
the existence of its wide powers and the propriety and desirability of
using them.
D In the Special Reference No. 1of1964 reported in ( 1965) I SCR
492) which arose out of the dispute as to the constitutional relationship
between the High Court and the Uttar Pradesh State Legislature, this
Court pointed out that when a citizen moves the Court and complains
that his fundamental right under Article 21 is contravened, it would
plainly be the duty of the Court to examine the merits of the said
E contention and that inevitably raises the question as to whether the
personal liberty of the citizen has been taken away according to the
-
procedure established by law. The Court held that the power of the
High Court under Article 226 and the authority of this Court under
Article 32 are not subject to any exceptions. Therefore, it cannot be
contended that a citizen cannot move the High Court or this Court to
F invoke their jurisdiction even in cases where his fundamental rights
have been violated. The judicial power conferred on the High Court
and this Court is meant for the protection of the citizens' fundamental
rights.
In Dwarkanath, Hindu Undivided Family v. Income-Tax Officer,
G Special Circle, Kanpur & Anr., [ 1965] 3 SCR 536 while dealing with
the nature and scope of power under Article 226, this Court observed
that though the High Court under that Article has a wide power to
reach injustice wherever it is found, it does not mean that the High
Court can funcation arbitrarily under it. Some limitations are implicit
in the Article and others may be evolved to direct the Article through
I
H defined channels.
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA [SAWANT, J.J 597
State of Bihar v. Rambalak Singh "Balak" & Ors., AIR 1966 SC
1441 was a case dealing with the question whether the High Court had A
under Art. 226 jurisdiction to release a detenu on bail pending the
final disposal of the petition. The detenu in that case was detained
under Rule 30 of the Defence of India Rules. The Court observed that
if on proof of certain conditions or grounds it is open to the High Court
to set aside the order of detention and direct the release of the detenu, B
it would not be possible to hold that in a proper case, the High Court
had no jurisdiction to make an interim order giving the detenu the
relief which the High Court would be entitled to give him at the end of
the proceeding. The Court referred to its earlier decision in Special
Reference No. 1 of 1964 (supra) and pointed out that the general
principle on which the observations of this Court were based in that
case would apply as much to the habeas corpus proceeding com- c
menced on behalf of the detenu detained under Rule 30 of the Defence
of India Rules as to any other habeas corpus proceeding. According to
the Court, the interim relief which can be granted in habeas corpus
proceeding must no doubt be in aid of and auxiliary to the main relief.
The Court added that it ic true that in dealing with the question as to D
whether interim bail should be granted to the detenu, the Court would
naturally take into account the special objects which are desired to be
achieved by orders of detention passed under Rule 30 but, stated the
Court, "We are dealing with the bare question of jurisdiction and are
- not concerned with the propriety or the reasonableness of any given
order. Considering the question as a bare question of jurisdiction we E
are reluctant to hold that the jurisdiction of the High Court to pass
interim auxiliary orders under Art. 226 of the Constitution can be said
to have been taken away by necessary implication when thee High
Court is dealing with habeas corpus petitions in relation to orders of
detention passed under Rule 30 of the Rule". The Court then dealt
with the contention that the order of bail in detention procedings F
would not be interim, but would be final and, therefore, that fact
distinguished cases of preventive detention under detention law from
other cases of habeas corpus petitions. Negativing the said contention
the Court held:
"(9) This argument also is not well-founded It is obvious G
that when the High Court releases a detenu on bail pending
the final disposal of his habeas corpus petition, the High
Court will no doubt take all the relevant facts into account
and it is only if and when the High Court is satisfied that
prima facie there is something patently illegal in the order
of detention that an order for bail would be passed. The H
598 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
jurisdiction of the High Court to pass an interim order does
A not depend upon the nature of the order, but upon its
authority to give interim relief to a party which is auxiliary
to the main relief to which the party would be entitled if it
succeeds in its petition. Therefore, considered as a mere
proposition of law, we see no reason to accept the argu-
B ment of the learned Advocate-General that the principle
enunciated by this Court in the Special Reference has no
application to habeas corpus petitions filed under Art. 226
in relation to orders of detention passed under R.30 of the
Rules.
(10) Having thus rejected the main argument urged
c by the learned Advocate-General, we must hasten to
emphasise the fact that though we have no hesitation in
affirming the jurisdiction of the High Court in granting
interim relief by way of bail to a detenu who has been
detained under R.30 of the Rules, there are certain inexor-
D able considerations which are relevant to proceedings of
this character and which inevitably circumscribe the exer-
cise of the jurisdiction of the High Court to pass interim
orders granting bail to the detenu. There is no doubt that
the facts on which the subjective satisfaction of the detain-
E
ing authority is base, are not justiciable, and so. It is not
open to the High Court to enquire whether the impugned
order of detention is justified on facts or not. The jurisdic-
tion of the High Court to grant relief to the detenu in such
-
proceedings is very narrow and very limited. That being so,
if the High Court takes the view that prima facie the allega-
tions made in the writ petition disclose a Serious defect in
F the order of detention which would justify the release of
the detenu the wiser and the more sensible ancJ reasonable
course to adopt would invariably be to expedite the hearing
of the writ petition and deal with the merits without any
delay. Take the case where malafides are alleged in respect
of an order of detention. It is difficult, if not impossible, for
G the Court to come to any conclusion, even prima facie
about the mala /ides alleged, unless a return is filed by the
State. Just as it is not unlikely that the High Courts may
come across cases where orders of detention are passed
mala fide it is also not unlikely that allegations of ma/a /ides
are made light-heartedly or without justification; and so,
H judicial aproach necessarily postulates that no conclusion
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA \SAWANT, J.I 599
can be reached, even prima facie as to ma/a /ides unless the
A
State is given a chance to file its return and state its case in
respect of the said allegations; and this emphasises the fact
that,even in regard to a challenge to the validity of an order
of detention on the ground that it is passed ma/a fide it
would not be safe, sound or reasonable to make an interim
order on the prima facie provisional conclusion that there B
may be some substance in the allegations of ma/a /ides.
What is true about mala /ides is equally true about other
infirmities on which an order of detention may be chal-
lenged by the detenu. That is why the limitation on the
jurisdiction of the Court to grant relief to the detenus who
have been detained under R.30 of the Rules inevitably
introduces a corresponding limitation on the power of the c
Court to grant interim bail,
(11) In dealing with writ petitions of this character,
the Court bas naturally to bear in mind the object which is
intended to be served by the orders of detention. It is no D
doubt true that a detenu is detained without a trial; and so,
the Courts would inevitably be anxious to protect the indi-
vidual liberty of the citizen on grounds which are justiciable
and within the limits of their jurisdiction. But in upholding
- the claim for individual liberty within the limits permitted
by law, it would be unwise to ignore the object which the
orders of detention are intended to serve. An unwise deci-
E
sion granting bail to a party may lead to consequences
which are prejudicial to the interests of the community at
large, and that is a factor which must be duly weighed by
the High Court before it decides to grant bail to a detenu in
such proceedings. We are free to confess that we have not F
come across cases where bail has been granted in habeas
corpus proceedings directed against orders of detention
under R.30 of the Rules, and we apprehend that the reluc-
tance of the courts to pass orders of bail in such proceed-
ings is obviously based on the fact that they are fully con-
scious of the difficulties-legal and Constitutional, and of G
the other risks involved in making such orders. Attempts
are always made by the courts to deal with such applica-
tions expeditiously; and in actual practice, it would be very
difficult to come across a case where without a full enquiry
and trial of the grounds on which the order of detention is
challenged by the detenu, it would be reasonably possible H
600 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
or permissible to the Court to grant bail on prima facie
A
conclusion reached by it at an earlier stage of the
proceedings.
(12) If an order of bail is made by the Court without
a full trial of the issues involved merely on prima facie
B opinion formed by the High Court, the said order would be
open to the challenge that it is the result of improper exer-
cise of jurisdiction. It is essential to bear in mind the dis-
tinction between the existence of jurisdiction and its proper
exercise. Improper exercise of jurisdiction in such matters
must necessarily be avoided by the Courts in dealing with
applications of this character. Therefore, on the point
c raised by the learned Advocate-General in the present
appeal, our conclusion is that in dealing with habeas corpus
petitions under Art. 226 of the Constitution where orders
of detention passed under. R.30 of the Rules are chal-
lenged, the High Court has jurisdiction to grant bail, but
0 the exercise of the said jurisdiction is inevitably circumscri-
bed by the considerations which are special to such pro-
ceedings and which have relevance to the object which is
intended to be served by orders of detention properly and
validly passed under the said Rules."
E Explaining the nature of preventive detention, this Court in
Khudiram Das v. The State of West Bengal & Ors., [1975] 2 SCR 832 at
-
842 stated as follows:
" ...... The power of detention is clearly a preven-
tive measure. It does not partake in any manner of the
F nature of punishment. It is taken by way of precaution to
prevent mischief to the community. Since every preventive
measure is based on the principle that a person should be
prevented from doing something which, if left free and
unfettered, it is reasonably probable he would do, it must
necessarily proceed in all cases, to some extent, on suspi-
G cion or anticipation as distinct from proof .......... This
being the nature of the proceeding, it is impossible to con-
ceive how it can possibly be regarded as capable of objec-
tive assessement. The matters which have to be considered
by the detaining authority are whether the person con-
cerned, having regard to his past conduct judged in the
H light of the surrounding circumstances and other relevant
- SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA [SAWANT, J.] 601
material, would be likely to act in a prejudicial manner as
contemplated in any of sub-clauses (i), (ii) and (iii) of A
clause (1) of sub-section (1) of Section 3, and if so, whether
-
it is necessary to detain him with a view to preventing him
from so acting. These are not matters susceptible of objec-
tive determination and they could not be intended to be
judged by objective standards. They are essentially matters B
which have to be administratively determined for the
purpose of taking administrative action. Their determina-
tion is, therefore, deliberately and advisedly left by the
legislature to the subjective satisfaction of the detaining
authority which by reason of its special position, expe-
rience and expertise would be best fitted to decide them. It
must in the circumstances be held that the subjective c
satisfaction of the detaining authority as regards these
matters constitutes the .foundation for the exercise of the
power of detention and the Court cannot be invited to con-
sider the propriety or sufficiency of the grounds on which
the satisfcatiort of the detaining authority is based. The D
Court cannot, on a review of the grounds, substitute its
own opinion for that of the authority, for what is made
condition precedent to the exercise of the power of deten-
tion is not an objective determination of the necessity of
detention for a specified purpose, but the subjective
opinion of the detaining authority, and if a subjective E
opinion is formed by the detaining authority as regards the
necessity of detention for a specified purpose, the condi-
tion of exercise of the power of detention would be fulfil-
led. This would clearly show that the power of detention is
not a quasi-judicial power ........... "
F
The Court thereafter spelt out some of the circumstances under
which the detention order though passed on the basis of subjective
satisfaction can be challenged. We have referred to those circums-
tances in paragraph 11 (vii) above.
In Francis Coralie Mullin v. Administrator, Union Territory of G
Delhi & Ors., [ 1981] SCC 608 while dealing with the detention law,
this Court held that the law of preventive detention has to pass the test
not only of Art. 22 but also of Art. 21. Having regard to the distinctive
character of preventive detention as apart from.punitive detention, the
restrktions pla.ced on a person preventively detained must, consis-
·.J- tently with the effectiveness of detention, be minimal. Any act which H
-
602 SUPREME COURT REPORTS (1990] Supp. 3 S.C.R.
A damages or injures or interferes with the use of any limb or faculty·of a
person either permanently or even temporarily would be within the
inhibition of Art. 21. So also every act which offends against or impairs
human dignity would constitute deprivation pro tanto of this right to
live and it would have to be in accordance with reasonable, fair and
just procedure established by law which stands the test of other funda-
B mental rights.
-
In Smt. Poonam Lata v. M.L. Wadhwan & Ors., [1987] II SCR
1123] thiJ; Court held that the period for which the detenu is on parole is
liable to be excluded from the total period for which the detenu is
detained. Parole brings the detenu out of confinement from the place
and the detention as contemplated by the act is interrupted until the
c detenu is put back into custody. The running of the period recom-
mences then and the total period of one year has to be counted by
putting the different periods of actual detention together. The Court
further held that whether it be under Art. 226 or 32 of the Constitu-
tion, the Court has no jurisdiction either under the Act or under the
D general principles of law or in exercise of its extraordinary jurisdiction
to deal with the duration of the period of detention either by abridging
or enlarging it. The only power that is available to it is to quash the
order in case it is found to be illegal. It would not, therefore, be open
to the Court to reduce the period of detention by admitting the detenu
E
on parole.
In the latest decision of two learned judges of this Court reported
in S.M.D. Kiran Pasha v. The Government of Andhra Pradesh & Ors.,
-
JT ( 1989) 4 SC 366, the facts were that the appellant sensing a move to
detain him under the provisions of the Andhra Pradesh Prevention of
Dangerous Activities of Bootleggers, Dacoits, Drug Offenders,
F Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986,
filed a writ petition in the Andhra Pradesh High Court alleging that
the successive actions initiated against him were a part of a political
vendetta. The learned single Judge made an interim direction to the
respondent authorities not to take the appellant into preventive
custody for a period of 15 days on the basis of the cases which were
G already registered against him. This order was made on 6.6.88. It,
however, appears that on 10.6.88 the appellant was served with the
detention order dated 3.6.88 as well as the grounds of detention, and
was taken into custody and detained in Secunderabad Jail but was
released after 4 days. The grounds of detention ranged the period from
23.11.74 to 7.5.88 On 25.6.88, the appellant filed a miscellaneous ap-
H plication in his writ petition stating, inter a/ia that although the interim
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA [SAWANT, J.] 603
direction was issued in his writ petition, the detention order dated
A
3.6.88 was served on him on 10.6.88 and assailed therein the grounds
of detention as vague, stale etc. and prayed for a declaration that the
detention order was illegal. No specific order was passed on this
miscellaneous application. The learned single judge referred the mat-
ter to the Division Bench, and the Bench d'lsinissed the writ petition
observing that as an order of detention \Vas made even before the writ B
petition was filed, the prayer in the writ petition had become infructu-
ous and there were no extraordinary or special reasons to depart from
the normal rule, namely, that in such cases the detenu should first
surrender and move for a writ of habeas corpus. Setting aside this
order of the Division bench ofthe High Court this Court held that the
writ petition was maintainable even though the detenu had not submit-
ted to the order of detention. It is not necessary to refer to this deci- c
sion on the merits of the detention order.
13. On behalf of the· respondents our attention was also invited
to three orders of this Court. The first order is of April 7, 1986 passed
in Criminal Miscellaneous Petition No. 899 of 1986 in Criminal writ D
Petition No. 1584 of 1985. By this order this Court held that since the
period fot which the order of detention was made had expired, the
order could no longer be enforced. In this case, earlier while admitting
the writ petition challenging the detention order, the Court had
restrained the respondent-District Magistrate from arresting the
• petitioner. In Writ Petition No. 526 of 1986, on September 16, 1986, E
this Court had directed that the petitioner should not be arrested until
further orders. In Writ Petition No. 3380 of 1982, similarly, on January
7, 1983 this Court had directed that the petitioner should not be
arrested under the detention order subject to the petitioner executing
a personal bond in the sum of Rs.25,000 and also surrendering ·his
passport to the Registrar of this Court within 24 hours. The contention F
on behalf of the respondents on the basis of these three orders was that
they show that this Court had in fact interfered with the detention
orders before the detenus had submitted to them.
14. We may now refer to the decisions of various High Court on
this point. The first of these cases is an unreported decision dated July G
8, 1980 of a Division Bench of the Bombay High Court in Special Civil
Application No. 2752 of 1975 with Criminal Revision Application No.
23 of 1980., to which one of us (Sawant, J.) was a party. In that case one
of the preliminary contentions was that the writ petition was not main-
tainable since it was premature inasmuch as the detention order had
not yet been served on the petitioner and he was not arrested under H
604 SUPREME COURT REPORfS (1990] Supp. 3 S.C.R.
the same. Dealing with this contention, the High Court there held that
A a detention order is executable the moment it is passed. Hence, a
person who is likely to be affected by such order has a right to ·
approach the court the moment he learns about it since he is sought
to be deprived of his liberty by- the said order. It may happen that an
order is passed without there being a statute to support it or without
B complying with the provisions of the statute, if any. The order may
also be passed against a wrong person or for a wrong purpose. To insist
in such cases that the person against whom the order is passed must
first submit to the same and lose his valuable liberty before approach-
ing the court is, according to the Court, to insist upon an unreasonable
condition. The Court further held that the fundamental rights granted
by the Constitution particularly by Articles 14, 19 and 21 conferred on
C the person likely to be affected by such order an implicit right to
approach the court at any time and the court cannot refuse relief to
such persen by insisting that he first surrender his liberty. To the same
effect are the views expressed by the High Court in other cases latter,
viz., Jayantilal Bhagwandas Shah and etc. v. State of Maharashtra,
D [ JQ81T 1 Cr. LJ 767 decided by Bombay High Court; Abdul Aziz
Mohammad v. Union of India, (1984] Cr. LJ 1307; Omar Ahmed
Ebrahim Noormani v. Union of India & Ors., (1984] Cr. LJ 1915 both
decided by Delhi High Court; Yogesh Shanti/al Choksi v. Home Secre-
tary, Government of Kera/a & Anr., [ 1983] Cr. LJ 393 decided by
Kerala High Court and Simmi v. State of U.P. & Ors., [1985] All.Li
E 598 decided by Allahabad High Court. •
15. It is also necessary to remember in this connection that judi-
cial review of legislation or of any order passed by the administrative
authorities is a part of the basic structure of the Constitution as is held
in re Minerva Mills Ltd. v. Union of India & Ors., (1981] 1 SCR 206
F and hence no order passed under any law including of preventive
detention is above judicial scrutiny. The same view is reiterated in S. P.
Sampath Kumar v. Union of India & Ors., (1987] 1 SCC 124 and P.
Sambamurthy & Ors. v. State of Andhra Pradesh &Anr., (1987] lSCC
362. But the Court has also stated in these cases that the Parliament
can certainly, without in any way violating the basic structure of the
G Constitution, set up an alternative institutional mechanism or autho-
rity for judicial review, if necessary, even by amending the relevant
provisions of the Constitution.
16. It is against the background of this position in law that we
have to examine the contentions raised on behalf of the parties before
H us. It was contended by Shri Sibbal, learned Additional Solicitor
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA (SAWANT, J.] 605
'
~
General, on behalf of the appellants that since the detention law is
A
constitutionally valid, the order passed under it can be challenged only
in accordance with the provisions of, and the procedure laid down, by
it. In this respect, there is no distinction between the orders passed
under the detention law and those passed under other laws. Hence, the
•
High Court under Article 226 and this Court under Article 32 of the
Constitution should not exercise its extraordinary jurisdiction in a B·
manner which will enable a party to by-pass the machinery provided by
the law. In this connection, it was emphasised by him that unlike the
order passed under other laws, the detention order if stayed or not
allowed to be executed, will be frustrated and the very object of the
detention law would be defeated. He, therefore, urged that the deten-
tion order should in no case be allowed to be challenged before it is
executed and the detenu is taken in custody. Secondly, it was submit-
c
ted by him that the detention jurisdiction being essentially a suspicion
jurisdiction, the concept of complete justice is alien to detention Jaw.
The liberty guaranteed by Article 21 of the Constitution is subject to
the provisions of Article 22 and, therefore, in a detention matter the
provisions of the two Articles cannot be separated. So Jong as the D
detention Jaw is intra-vire~ the Constitution and it states that the
detenu shall .be informed of.the grounds of his detention only after he
loses his liberty, the detenu cannot, by resort to Article 226, by-pass
the provisions of that Jaw or invite the High Court to do so and secure
the grounds before submitting to the order. Thirdly, it was urged that
the detention Jaw in question has not taken away the judicial review of E
the order passed under it. It is only the stage at which the order should
be reviewed is by implication postponed and the Courts have done so
by a self-regulated procedure consistent with the object of the Jaw.
The judicial review under the detention Jaw has to be post-decisional
firstly because it makes no distinction between a citizen and a non-
citizen and secondly it is enacted to confer emergent or police powers F
on the State which are necessary to safeguard the interests of the
general public, public order and security of the State. It was also
contended in this behalf that the Jaw by itself does not place any
restriction on the writ-jurisdiction of the Court. The restriction exer-
cised by the Court is of its own making and such an internal restraint is
- not inconsistent with the basic structure of the Constitution.
As against this Shri Jain, appearing for the respondent con-
G
tended, firstly, that Article 22 is an additional protection of liberty
which is guaranteed by Articles 14. 19 and 21 of the Constitution. An
inividual has an absolute right to liberty and, therefore, the burden is
-, on the State to satisfy that the deprivation of the liberty is necessary in H
-
606 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
A the interests of the general public, security of the State, public order
etc. before apprising him of the grounds of his arrest. His second
contention which was the extension of the first, was that since the State
has to satisfy that the deprivation of the liberty of the· person is so
necessary, it must place all its cards before the Court before his arrest,
particularly when he approaches the Court making a grievance against
B the order. In this connection, he contended that the extent of the right
to life and liberty under Article 21 of the Constitution has been
expanded by this Court to include not only the right to live but also the
right to live with dignity, and it is affected the moment the person loses
his liberty before knowing the reasons for the same >0r having an
opportunity to challenge them. This is particularly so when the facts on
the basis of which the arrest is sought to be made are within the
c exclusive knowledge of the State. The third contention was that, as has
been held by this Court, a person can be deprived of his life and liberty
only under a valid law which lays down a fair procedure for deprivation
of the liberty of the individual. The State cannot be said to have
adopted a fair procedure for arrest of a person when it refuses to
D disclose the facts on the basis of which it proposes to arrest him. His
last contention was that judicial review being. a part of the basic
structure of the Constitution the power of the High Court under Arti-
cle 226 of the Constitution cannot be circumscribed in any way be any
law including dectention law. The detention order, therefore, can be
challenged at any stage, and the artificial distinction between pre-
E decisional and post-decisional challenge is inconsistent with and alien
to the wide powers conferred under Article 226 and 32 of the
Constitution.
17. The preventive detention law by its very nature has always
posed a challenge before the Courts in a democratic society such as
F ours to reconcile the liberty of the individual with the' allegedly
threatened interests of the society and the security of the State particu-
larly during times of peace. It is as much a deprivation of liberty of an
individual as the punitive detention. Worst still, unlike the latter, it is
resorted to prevent the possible misconduct in future, though the prog-
nosis of the conduct is based on the past record of the individual. The
G prognosis further is the result of the subjective satisfaction of the
detaining authority which is not justiciable. The risk to the liberty of
the individual under our detention law as it exists is all the more
aggravated because the authority entrusted with the power to detain is
not directly accountable to the legislature and the people.
H It is to prevent the possible abuse of this draconian measure that -
'
SECY. TO GOVT. OF INDIA v. SMT. A.S. GAD!A [SAWANT, J.] 607
the legislature has taken care to provide certain salutary safeguards
A
such as (i) the obligation to furnish to the detenu the grounds of
detention ordinarily within five days and in exceptional circumstances
and for reasons to be recorded in writing not later than 15 days from
the date of detention, (ii) the right to make representation against the
order of detention, (iii) the constitution of advisory board consisting of
persons who are or have been qualified to be appointed as judges of the B
High Court, (iv) the reference of the case of the detenu to the advisory
board within 5 weeks of the date of detention, (v) the hearing of the
detenu by the advisory board in person and the submission by the
board of its report to the Government within 11 weeks from the date of
detention, (vi) the obligation of the Government to revoke the deten-
tion order if the advisory board reports that there is in its opinion no
sufficient cause' for the detention of the person concerned, (vii) the c
provision of the maximum period for which a person can be detained
and (viii) revocation of the detention order by the Government on the
representation of the detenu independently of the recommendation of
the advisory board, etc. In addition, the detenu or any one on his
behalf has a right to move the High Court and the Supreme Court by D
way of a habeas corpus petition challenging the detention on various
grounds which are already puinted out above while discussing the
various authorities. It must further be appreciated that the validity of
the Act in question being permitted to be enacted by the Constitution,
has also been upheld by this Court with all its present provisions as
they stand. Howsoever repugnant the notion of preventive detention E
may be• to the champions of individual liberty, it has also to be
remembered that the power to make such a law even during peace
time has been incorporated in the Constitution by the framers of the
Constitution many of whom had tasted the bitter fruits of such deten-
tion law during the struggle for freedom. Whatever may therefore, be
one's own notions about the dimensions of individual liberty, one must F
accept the provisions of the Constitution as enacted by the mature
vision and seasoned experience of the Constitution-makers. We must
also not lose sight of the fact that over the years, by and large, the
judiciary has interpreted the Act and the orders made thereunder
strictly so as to give to the detenu the benefit of every unexplained
error of omission and commission and has either struck down the order G
itself or has held its further operation illegal.
18. The whole thrust of the frist three contentions advanced by
Shri Jain for the respondent is not only directed against the impugned
order but also against the provisions of the Act and the Constitution.
His contention that since the individual has an absolute right to liberty, H
-
608 SUPREME COURT REPORTS (1990] Supp. 3 S.C.R.
the burden is on the State to satisfy that it is necessary to deprive the
A individual of his liberty before apprising him of the grounds of his
detention, is clearly against the relevant provisions of Article 22 of the
Constitution. The right to liberty protected by Article 21 has been
limited by Article 22 which permits arrest for punitive and preventive
detention, provided the safegrards mentioned therein are observed.
B The provisions of Article 22 (3) (b) permit the arrest or detention of a ''
person under any law providing for preventive detention without com-
plying with the provisions of sub-clauses ( 1) and (2) of Article 22 which
require that no person who is arrested shall be detained in custody,
among other things, without being informed "as soon as may be" of
the grounds of such arrest and that he shall not be denied the right to
consult and to be defended by a legal practitioner. He shall also be
c required to be produced before the nearest magistrate within twenty-
four hours of his arrest. Although sub-clause (5) of Article 22 also
requires that the person detained under a preventive detention law
would be communicated the grounds of his detention "as soon as may
be", it also does not specify the maximum period within which the
D grounds are to be so communicated. In other words, the provisions of
the Constitution permit the legislature to make a law under which a
person may be arrested and detained without first communicating to
him the grounds of his arrest. The provisions of Section 3 (3) of the
present Act which are made for the purpose of Article 22 (5) of the
Constitution provide that ordinarily the grounds of arrest shall be (
E communicated within the maximum period of 5 days, and in excep- ....
tional circumstances and for reasons to be recorded in writing they
shall be communicated within a period of 15 days from the date of the
detention. These provisions of the Act have not been faulted on any
account. In the face, therefore, of the clear provisions of the Constitu-
lion and of the Valid Act, it is not open to contend that the provisions
F of Article 14, 19 and 21 of the Constitution prevent a person being
deprived of his liberty without first apprising him of the grounds of his
arrest. For this very reason, it is also not open to contend that since the
State has all the facts in its possession which require the arrest and
detention of the person, it must first disclose the said facts before
depriving him of his liberty. Since the provisions of Article 22 of the
G Constitution pointed out above and of the Act made thereunder
permit the State to arrest and detain a person without first disclosing
the grounds, even though they are in its possession before or at the
time of his. arrest, this argument is not tenable in law. It must further
be remembered that though the provisions of the Constitution and the
law enacted for the purpose enable the State or its delegate the detain-
I
1-1 ing authority to detain a person without first disclosing the grounds of <
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA [SAWANT, J.J 609
detention they do not preclude them from serving the grounds of A
detention on the detenu along with the order of detention. In fact very
often they do so. But Shri Jain's argument goes still further and
requires that the order of detention and the grounds of detention
should be served on the proposed detenu in advance to enable him to
challenge them in a Court of law before submitting to the order. In
advancing this contention, Shri Jain not only wants to secure to the B
proposed detenu the right to seek the judicial review of the detention
order even before it is executed but also to enable him thereby to
by pass the procedure laid down by the law to challenge it after it is
executed. To that extent this contention requires the court to go a step
further and to do something more than what it does or would do while
entertaining grievances against orders passed under other laws. The
-1
justification advanced to claim this superior right is that under the
c
detention law what is infringed is the liberty of the individual and no
individual should be required to surrender it without a prior right to
challenge the order in question. As has been elaborately discussed
above, however vital and sacred the liberty of the individual, for
reasons which need not be discussed over again here, the responsible D
framers of the Constitution alth@ugh fully conscious of its implications
have made a provision for making a law which may deprive an indi-
vidual of his liberty without first disclosing to him the grounds of such
deprivation. It is not, therefore, possible for us to accept the three
contentions.
'• E
19. As regards his last contention, viz., that to deny a right to
the proposed detenu to challenge the order of detention and the
grounds on which it is made before he is taken in custody is to deny
... him the remedy of judicial review of the impugned order which right is
a part of the basic structure of the Constitution, we find that this
argument is also not well-merited based as it is c,n "bsolute assump- F
lions. Firstly, as pointed out by the authorities d1scus.>ed above, there
is a difference between the existence of power and its exercise. Neither
the Constitution including the provisions of Article 22 thereof nor the
Act in question places any restriction on the powers of the High Court
and this Court to review judicially the order of detention. The powers
under Articles 226 and 32 are wide, and are untrammelled by any G
external restrictions. and can reach any executive order resulting in
civil or criminal consequences. However, the Courts have over the
years evolved certain self-restraints for exercising these powers. They
have done so in the interests of the admininstration of justice and for
better and more efficient and informed exercise of the said powers.
These self-imposed restraints are not confined to the review of the H
610 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.
A
orders passed under detention law Or!ly. They extend to the orders
passed and decisions made under all laws. It is in pursuance of this
self-evolved judicial policy and in conformity with the self-imposed
internal restrictions that the Courts insist that the aggrieved person
first allow the due operation and implementation of the concerned law
and exhaust the remedies provided by it before approaching the High
B Court and this Court to invoke their discretionary extraordinary and
equitable jurisdiction under Articles 226 and 32 respectively. That
jurisidiction by its very nature is to be used sparingly and in circums-
tances where no other efficacious remedy is available. We have while
discussing the relevant authorities earlier dealt in detail with the
circumstances under which these extraordinary powers are used and
are declined to be used by the courts. To accept Shri Jain's present
c contention would mean that the courts should disregard all these time-
honoured and well-tested judicial self-restraints and norms and exer-
cise their said powers, in every case before the detention order is
executed. Secondly, as has been rightly pointed out by Shri Sibbal for
the appellants, as far as detention orders are concerned if in every case
D a detenu is permitted to challenge and seek the stay of the operation of
the order before it is executed, the very purpose of the order and of the
law under which it is made will be frustrated since such orders are in
operation only for a limited period. Thirdly, and this is more
important, it is not correct to say that the courts have no power to
entertain grievances against any detention order prior to its execution.
E The courts have the necessary power and they have used it in proper
cases as has been pointed out above, although such cases have been
few and the grounds on which the courts have interfered with them at
the pre-execution stage are necessarily very limited in scope and
number, viz., where the courts are prima facie satisfied (i) that the
impugned order is not passed under the Act under which it is
F purported to have been passed, (ii) that it is sought to be executed
against a wrong person, (iii) that it is passed for a wrong purpose, (iv}
that it is passed on vague, extraneous and irrelevant grounds or (v)
that the authority which passed it had no authority to do so. The
refusal by the courts to use their extraordinary powers of judicial
review to interfere with the detention orders prior to their execution
G on any other ground does not amount to the abandonment of the said
power or to their denial to the proposed detenu, but prevents their
abuse and the perversion of the law in question.
20. Lastly, it is always open for the detenu or anyone on his
behalf to challenge the detention order by way of habeas corpus peti-
H tion on any ground available to him. It is not, therefore, correct to say
SECY. TO GOVT. OF !NOIA v. SMT. A.S. GADIA [SAWANT, J.] 611
that no judicial review of the detention order is available. In the view
A
we are taking which applies also to the cases under other laws. the
stage at which the judicial review is made by the Court only stands
deferred till after the order is executed. A ground on which a deten-
tion order is challenged which requires investigation and cannot be
adjudicated without hearing the other side and without proper mate-
rial, has necessarily to await decision till the final hearing. In such B
cases the operation of the order of detention by its very nature cannot
be stayed pending the final outcome. The only proper course in such
cases is to hear the petition as expeditiously as possible.
21. This still leaves open the question as to whether the detenu is
entitled to the order of detention prior to its execution at least to verify
whether it can be challenged at its pre-execution stage on the limited c
grounds available. In view of the discussion aforesaid, the answer to
this question has to be firmly in the negative for various reasons. In the
first instance, as stated earlier, the Constitution and the valid law
made thereunder do not make any provision for the same. On the
other hand, they permit the arrest and detention of a person without D
furnishing to the deteriu the order and the grounds thereof in advance.
Secondly, when the order and the grounds are served and the detenu is
in a position to make outprimafacie.t,he limited grounds on which they
can be successfully challenged, the courts, as pointed out earlier, have
power even to grant bail to the detenu pending the. final hearing of his
petition. Alternatively, as stated earlier, the Court can and does hear E
such petition expeditiously to giye' the necessary relief to the detenu.
Thirdly, in the rare cases where ·the detenu, before being served with
them, learns of the detention order and the grounds on which it is
made, and satisfies the Court of their existence by proper affirmation.
the Court does not decline to entertain the writ petition even at the
pre-execution. stage, of course, on the very limited grounds stated F
·above. The Court no doubt even in such cases is not obliged to
interfere with the impugned order at that stage and may insist that the
detenu should first submit to it. It will, however, depend on the facts
of each case. The decisions and the orders cited above show that in
some genuine cases, the Courts have exercised their powers at the'
pre-execution stage, though such cases have been rare. This only G
emphasises the fact that the courts have power to interfere with the
detention orders even at the pre-execution stage but they are not
obliged to do so nor will it be proper for them to do so save in excep-
tional cases. Much less can a detenu claim such exercise of power as a
matter of right. The discretion is of the Court and it has to be exercised
judicially on well-settled principles. H
612 SUPREME COURT REPORTS (1990] Supp. 3 S.C.R.
A 22. To the extent that the decision of this Court in S. M. D. Kiran '-
Pasha v. The Government of Andhra~Pradesh & Ors., JT 1989 4 SC 366
and the decisions of ~II the High Courts are contrary to or inconsistent
with the view taken by us above, they will be deemed to have been
disapproved and overruled.
B
23. In the present case, admittedly the proposed detenu is
absconding and has been evading the service of the detention order.
The first respondent who is his wife has sought to challenge the said
order because the show-cause notice under sub-section ( 1) of Section 6
of the SAFEMA is issued to him, a copy of which is also sent to her.
Thus the assistance of the High Court under Article 226 of the Con-
c stitution is sought by the first respondent on behalf of the detenu to
secure the order of detention with a view to defend the proceedings
unJtr the SAFEMA. In other words, the proposed detenu is trying to
secure the order of detention indirectly without submitting to it. What
is itirihcr, he is also trying to secure the grounds of detention as well as
tht d<0cuments supporting them which he cannot get unless he submits
D to the order of detention. No prima facie case is made out either before
the High Court '" before us for challenging the order of detention
which would impel the Court to interfere with it at this pre-execution
stage. Unfortunately. the High Court disregarding the law on the sub-
ject and the long-settied principles on which alone it can interfere with
the detention order at this stage has directed the authorities not only to
E furnish to the detenu the order of detention but also the grounds of
detention and the documents relied upon for passing the detention
order. The relevant portion of the order passed by the High Court in
that behalf on June 27, 1989 speaks for itself:
F "It is undoubtedly true that detailed grounds of challenge
are already to be found in the Cr. W.P. However, the
returns filed are always not very satisfactory and in many
cases we have found that only half truth is indicated in the
return. It would, therefore, be undesirable to decide the
challenge to the detention under the COFEPOSA Act
G
merely on the basis of the affidavits. In our opinion. the
challenge is required to be precisely formulated and has to
be properly scrutinised. The formulation and the scrutiny
require that the order and the grounds of detention and the
,upporting documents considered by the detaining autho-
rity be furnished to the detcnue as well as produced before
H the Court.
SECY. TO GOVT. OF INDIA '· SMT. A.S. GADIA [SAWANT, l.I lli3
We have ascertained from the learned Counsel reprec A
senting Respondents Neis, 1 to 3 that the orders and the
grounds of detention as well as supporting documents arc
available. with the Department in Bombay. We accordingly
direct that copies of the same will be prepared and one
copy of the same will be furnished to the petitioner's advo-
B
cate, on record by 5.30 p.m. on Thursday. i.e., 29th June,
1989. We propose to·stand over the matter till Monday, the
3rd July, 1989 to enable the petitioner to consider '" to
whether any amendment of the Writ Petition is required. 11
any amendments are sought, sufficient time will have to be
given to the respondents to file their return, although we
must express our amazement once again that in a writ peti- c
tion admitted on 22nd May, 1989 and made returnable
within 8 weeks instructions to file return have been belatedly
given after 4 weeks and that too also without the main
brief."
D
24. As has been pointed out at the outset, after this order, the
appellants took the plea ihat although they were willing to produce the
order of detention and the grounds of detention for the perusal of the
Court, they cannot furnish them to the first respondent unless. as
required by the Act, the detenu first submits to the impugned order.
The High Court thereupon issued the contempt notice by its order
dated June 30, 1989. for the reasons discusssed above, we are of the E
view that both the orders of the High Court directing the appellants to
furnish to the detenu or to the first respondent or her counsel the order
of detention, the grounds of detention and the documents supporting
them as well as the contempt notice of 30th June, 1989 are clearly
illegal and unjustified and they are hereby quashed. Both the appeals
are accordingly allowed. F
N.P.V. Appeals allowed.
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