Holding

Detention is illegal because the State Government failed to consider the representation, violating Article 22(5), and the order of detention is quashed.

Summary

The petitioner, Salim Rajmohmad Muslim, was detained under section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985 on 11 June 1987. He filed a representation on 15 July 1987 to both the detaining authority (Police Commissioner, Surat) and the State Government, alleging that neither had considered it promptly. The detaining authority claimed it received and rejected the representation on the same day, but the State Government made no response. The Supreme Court held that Article 22(5) of the Constitution guarantees not only the right to make a representation but also the right to its proper consideration by the authority, and that the State Government's failure to dispose of the representation rendered the detention illegal. Consequently, the order of detention was quashed and the petitioner was ordered to be set at liberty. The petition was allowed.

Issues considered

Whether the failure of the State Government to consider the petitioner's representation under Article 22(5) invalidates the detention under the Gujarat Prevention of Anti-Social Activities Act, 1985.
Whether consideration and rejection of the representation by the detaining authority alone satisfies the constitutional requirement of Article 22(5).
Whether an unexplained delay in disposing of the representation violates the procedural safeguards guaranteed by Article 22(5).

Legislation cited

Constitution of Indias. Article 22(5)
Gujarat Prevention of Anti-Social Activities Act, 1985s. 3(2)

Subjects

detentionrepresentationArticle 22(5)preventive detentionGujarat Prevention of Anti-Social Activities Actconstitutional rightsprocedural safeguardswrit petitionArticle 32

Judgment

,\
SALIM RAJMOHMAD MUSLIM '
A
v.
STATE OF GUJARAT & ORS.

MAY 3, 1988

B [A.P. SEN AND L.M. SHARMA, JJ.] ...,,,.
Constitution of India, 1950: Article 22(5)-Detenu's right of
representation a valuable constitutional right-Government to ensure
strict observance of this constitutional safeguard.

c Gujarat Prevention of Anti-Social Activities Act, 1985: Section
3(2)-Detention order-Representation of detenu-Failure of Govern-
ment to consider and dispose of-Whether detention illegal.
~
The petitioner, who was detained under sub-section (2) of section
3 of the Gujarat Prevention of Anti-Social Activities Act, 1985, by an
D order dated 11th June, 1987 filed a writ petition in this Court, alleging
that both the detaining authority as also the State Government had not
considered the representation, dated 15th July, 1987 made by him, with
utmost promptitude and that, in fact, there was no disposal of the said
representation by these authorities.
~
E In the counter-affidavit filed by the detaining authority, it was
averred that the representation, received by it on 21st July 1987 was
duly considered and rejected the same day.

Allowing the appeal,

F HELD: The right of representation under Article 22(5) of the
Constitution of India is a valuable and constitutional right. The Govern-
ment is expected to ensure that the constitutional safeguards embodied
in Article 22(5) are strictly observed. [830E-F]

Mohinuddin v. District Magistrate, Beed & Ors., (1987] 4 SCC 58
G reliedon.

In the instant case, the petitioner had the right to make a -<.
representation not only to the detaining authority but also to the State
Government which had the power to revocation. Although the re-
presentation made by him to the detaining authority has been
H considered and rejected, this is not a substantial compliance of the
828
S.R. MUSLIM v. STATE OF GUJARAT 829

constitutional rights enshrined in Article 22(5) of the Constitution. The A
allegation made by the petitioner that he"made a further representation
to the State Government had not been controverted. The State Govern-
ment had disdained from ,filing any counter-affidavit for obvious
reasons. [830C-E] ·

.• ...,.. The wholly unexplained and unduly long delay-rather the un- B
deniable failure on the part of the State Government in the disposal of
the representation, renders the detention of the petitioner illegal. [829G-H]

The order of detention made under sub-section (2) of s. 3 of the
Gujarat Prevention of Anti-Social Activities Act, 1985 is accordingly
quashed. [8310] c
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Cr!.) No. 124 of 1988;

(Under Article 32 of the Constitution of India)
D
M.C. Kapadia, Y.P. Dhingra, B.K. Satija and S.S. Khanduja for
the Petitioner.

P.S. Poti and M.N. Shroff for the Respondent.

The following Order of the Court was delivered: E

·- 0 R D,E R

After hearing learned counsel for t!:te parties at quite some
length, we are satisfied that the failure on the part of the State Govern-
ment to considet·and decide the representation made to them by the F
petitioner against his detention by an order of detention dated 11th
June, 1987 passed by the Commissioner·of Police, Surat City under
sub-s. (2) of s. 3 of the Gujarat Prevention of Anti-Social Activities
Act, 1985, makes his continued detention invalid and constitutionally
in:ipermissible. Apart from various other contentions, Shri Kapadia,
learned counsel for the petitioner rightly contended that there was no G
explanation at all as to why the representation made by the petitioner
to the State Government was not attended to and kept.pending. In view
of the wholly unexplained and unduly long delay-rather the undeni-
able failure on the part of the State Government in the disposal of the
representation-renders the detention of the petitioner illegal. On the
view that we take, there is no need to deal with various contentions H
830 SUPREME COURT REPORTS [1988] 3 S.C.R.
~.
A raised by him on behalf of the petitioner. The learned counsel drew
our attention to paragraph 8(e) of the Writ Petition where the
petitioner avers inter alia that he had made a representation dated 15th
July, 1987 to the Police Commissioner, Surat City, as also to the State
Government but 'both the authorities had not considered the re-
presentation so made with utmost promptitude and that there was in
B fact no disposal of the said representation by the detaining authority as
well as the State Government'. This assertion of his is sought to be met
by the Commissioner of Police, Surat City, the detaining authority, in
the counter-affidavit. It is averred in paragraph III(e) that he had
received the representation on 21st July, 1987 and rejected it on the same
day after due consideration. This is not a substantial compliance of the
constitutional rights enshrined in Art. 22(5) of the Constitution. The
c petitioner had the right not only to make a representation to the
detaining authority but also to the State Government which had the
power of revocation. In view of this, Shri P.S. Poti, learned counsel
appearing on behalf of the State Government, with his usual fairness,
rightly accepts that the denial in paragraph III( e) of the counter-
D affidavit was not sufficient. The fact remains that the allegation made
by the petitioner that he had made a further representation to the
State Government has not been controverted. The State Government
has disdained from filing any counter-affidavit for obvious reasons. In
Mohinuddin v. District Magistrate, Beed & Ors., [1987] 4 SCC 58 this
Court had occasion to deal with this aspect. In that case, there was
E wholly unexplained, unduly Jong delay in the disposal of the represen-
tation by the State Government and it was held that further detention
of the detenu was rendered invalid and constitutionally impermissible.
The right of representation under Art. 22(5) is a valuable constitu-
tional right and it is expected that the Government will ensure that the
constitutional safeguards embodied in Art. 22(5) are strictly observed.
F It was observed by one of us

(SEN, J.):

"We say and we think it necessary to repeat that the gravity
of the evil to the community resulting from anti-social
G activities can never furnish an adequate reasons for invad-
ing the personal liberty of a citizen, except in accordance
with the procedure established by the Constitution and the
laws. The history of personal liberty is largely the history of
insistence on observance of the procedural safeguards."

H It was next observed:
S.R. MUSLIM v. STATE OF GUJARAT 831

"It goes without saying that the constitutional right to A
make a representation guaranteed by Art. 22(5) must be
taken to include by necessary implication the constitutional
right to a proper consideration of the representation by the
authority to whom it is made. The right of representation
under Art. 22(5) is a valuable constitutional right and is not B
a mere form]llity. The representation made by the appel-
lant addressed to the Chief Minister could not lie unatten-
ded to in the portals of the Secretariat while the Chief
Minister was attending to other political affairs."

In view of the failure in the disposal of the representation by the State
Government, it must be held that the further detention of the C
petitioner is illegal and constitutionally impermissible.

The writ petition must therefore succeed and is allowed. The
order of detention passed by the Commissioner of Police, Surat City
under sub-s. (2) of s. 3 of the Gujarat Prevention of Anti-Social
Activities Act, 1985 is accordingly quashed. We direct that the D
petitioner be set at liberty forthwith.

N.P.V. Petition allowed.

I
....