Supreme Court of India
STATE OF PUNJABversusSUKHPAL SINGH
- Citation
- 1989 INSC 307
- Decided
- 6 October 1989
- Disposal
- Dismissed
- Bench
- M M DUTT
Holding
The appeal fails; the detention order is void for procedural violations, and the detenu must be released.
Summary
Sukhjinder Singh was detained under the National Security Act, 1980 on 28 May 1988. His son, Sukhpal Singh, filed writ petitions seeking habeas corpus, alleging that the detention order was issued without subjective satisfaction, that there was an inordinate delay in considering the detenu's representation, and that the detenu was denied a chance to appear before the Advisory Board with his witnesses. The Punjab High Court quashed the detention order, and the State appealed. The Supreme Court examined the statutory requirements of Sections 3, 9‑12 and 14A of the Act, the constitutional safeguards under Article 22(5), and the procedural lapses alleged. It held that the State failed to consider the representation within a reasonable time and denied the detenu the opportunity to be heard before the Advisory Board, violations that vitiated the detention order. Consequently, the Court dismissed the appeal and ordered the detenu’s release.
Issues considered
- The validity of the detention order under the National Security Act in view of alleged lack of subjective satisfaction by the detaining authority.
- Whether the delay in considering the detenu's representation violated Article 22(5) of the Constitution and the procedural safeguards of the Act.
- Whether the denial of an opportunity to appear before the Advisory Board and to produce witnesses rendered the detention unlawful.
- Whether the Advisory Board's advice, when adverse to the detenu, is binding on the Government under Section 12(2) of the Act.
- Impact of the 1984‑1988 amendments to the National Security Act on the procedural safeguards under Sections 9, 10 and 11.
Legislation cited
- National Security Act, 1980s. 10, s. 11, s. 12, s. 14A, s. 3(2), s. 9
Subjects
preventive detentionNational Security ActAdvisory BoardArticle 22(5)procedural fairnesspersonal libertysubjective satisfactionrepresentation delay
Judgment
STATE OF PUNJAB
A v.
SUKHPAL SINGH
OCTOBER 6, 1989
B [MURARI MOHON DUTT AND K.N. SAIKIA, JJ.]
National Security Act, 1980-Sections 3(2), 9, 10, 11 and 12-
Detention Order-Advisory Board-Not a judicial body-Charged
with responsibility of advising Executive Government-Decisions when
binding on Government.
c Sri Sukhjinder Singh has been under detention pursuant to the
order dated 28.5.1988 of the Government of Punja)>; Department of
Home Affairs and' Justice passed in exercise of the powers conferred by
sub-section (2) of Section 3 of the National Security Act, 1980 herein-
after referred to as "the Act" read with section 14A as inserted by
D National Security (Amemdment) Act, 1987 with a view to preventing
him 'from mdulging .in activities prejudicial to the secnrity of the State and
maintenance of public order and interference with the efforts of the
Govt. in coping wi!h the terrorists and disruptive activities.
The detenu's son Sukhpal Singh filed Criminal Writ Petition
ij No. 1393 of 1988 in the High Court praying inter-alia for a writ of
Habeas Corpus, quashing the detention order, production of the detenu
in the Court on the date of hearing, directing the authorities to arrange
for the presence of the detenu before the Advisory Board at Chandigarh
and also to make arrangements & pay for the expenses required to be
incurred for arranging the presence of detenu's witnes~s to be pro-
F duced before the Board at Agartala and also his relatives and counsel so
as to effectively assist him in regard to the presenting of his case before
the Board.
The High Court by order order 27.9.88 dismissed the Writ Peti-
tion but ordered that the petitioner·would approach the Advisory Board
G at Chandigarh with the requesi for allowi~g the detenu to produce
evidence before it at Agartala and in case his prayer was granted by the
Board, the expenses for taking those witnesses to Agartala would be
borne by the respondent-state. ·
Sukhpal Singh later moved Criminal Writ Petition No. 2365 of
H 1988 in the High Court of Punjab & Haryana for quashing the detention
420
STATE OF PUNJAB v. SUKHPAL SINGH 421
order contending inter-alia that the order of detention was passed on
A
28.5.88 in a cursory and routine manne< without application of mind,
much less with subjective satisfaction and there was an inordinate delay
of two months in consideration of detenu's representation and that the
detention was confirmed without affording the detenu any chance of
' appearing and producing witnesses before the Advisory Board in terms
of orders of the High Court dated 27.9.88 made in Crl. Writ Petition B
No. 1393 of 1988.
The High Court upheld the above contention of the petitioner and
accordingly quashed the order of detention and ordered the detenu to
be set at liberty Corwith unless required in any other case.
Aggrieved hy this order the State has come up before this Court c
by way· of special leave. The Court while dismissing the appeal and
directing the detenu to be set at liberty forthwith as ordered by the High
Court.
HELD: A clear distinction has to be drawn between preventive D
detention in which anticipatory and precauiionary- action is taken to
prevent the recurrence of apprehended events, and punitive detention
under which the action is taken after the event has already hal'Jlened. It
' is true that the ordinary criminal process of trial is not to be cir-
cumvented and short circuited by apparently handy and easier resort to
11reventive detention. But the possibility of launching a criminal pro- E
secution cannot be said to be an, absolute bar to an order of preventive
detention. Nor would it be correct to say that if such possibility is not
present in the mind of the detaining authority the order of detention
would necessarily be bad. i426C-E]
It is true that the Advisory Board is not a judicial body. It is F
charged with the responsibility of advising the Executive Government.
But when it advises in favour of the detenu, namely that there was no
sufficient cause for detention, it would be binding upon the Govt. under
section 12(2) of the Act to release the detenu forthwith. [439F]
Expressing inability to appear once could not have been treated as G
the detenu's not desiring to be heard under section 2(2) of the Act. ln
fact he desired to be heard and to produce his witnesses. [439Gl
The protection of personal liberty is largely through insistence on
observance of the mandatory procedure. In cases of preventive deten-
tion observance of procedure has been the bastion against wanton H
422 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
A assaults ou personal liberty over the years. [440E]
One of the foremost and fundamental right guaranteed in the
Constitution is personal liberty and one cannot be deprived of it except
by !he procedure prescribed by law. Libertas Inestimabilis res est.
Liberty is an inestimable thing above price. Libertus omnibus rebus
B favourabilier est. Liberty is more favoured than all things (anything). It
would be ironic if, in the name of social security, we would sanction the
subversion of this liberty. [440F-G]
The increasing need for ensuring public safety and security in the
State of Punjab and the Union Territory of Chandigarh has been
reflected in the recent successive amendments of the National Security
c Act. [442F]
As·a result of these amendments applicable to the State of Punjab
and the Union Territory of Chandigarh it is found on the one hand
addition to the grounds of detention and on the other, extension of
D period during which a person could be detained without obtaining the
opinion of the Advisory Board. There is, however, no amendment as to
the safeguards provided under Article 22 and ss. 9, 10 and 11 of the Act.
Indeed, there could be no such amendment. [444C-D]
Lex uno ore omnes al/oguitur. Law addresses all with one mouth
E or voiee. Quotaiens dubia interpretatio libertatis est secundum libertatem
respondentum erit-Whenever there is a doubt between liberty and
bondage, the decision must be in favour ofliberty. [444E)
Fazal Ghosi v. State of U.P. & Ors., AIR 1987 SC 1877: 1987 (3)
SCR 471; Rex v. Halliday, Ex parte Zadig, [1917] AC 260; Ujagar
Singh v. State of Punjab, AIR 1952 SC 350: 1952 SCR 756; Haradhan
Saha v. The State of West Bengal & Ors., [1975] 3 SCC 198; Hem/ata
Kantilal Shah v. State of Maharashtra & Ors.·, AIR 1982 SC 8: 1982 (1)
SCR 1028; Ashok Kumar v. Delhi Administration & Ors., AIR 1982 SC
1143: [1982] 3 SCR 707; Ciani Bakshish Singh v. Governmentof India
& Ors., AIR 1973 SC 2667_: [1974] I SCR 662; Raj Kumar Singh v. State
G of Bihar & Ors., AIR 1986 SC 2173; [1986] 4 SCC 407; Jayanarayan
Sukut v. State of West Bengal, [1970] 3 SCR 225; Frances Coralie
Mullin v. W.C. Khambra & Ors., [1980] 2 SCC 275; StateofOrissa &
Anr. v. Manila/ Singhania & Anr., AIR 1976 SC 456: [1976] 2 SCC 808;
A. K. Gopa!an v. The State of Madras, AIR 1950 SC 27: [1950] SCR 88;
John Martin v. State of West Bengal, [1975] 3 SCC 836; Khudiram Das
H v. The State of West Bengal & Ors., [1975] 2 SCC 81; Saleh Mohammed .
STATE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.] 423
v. Union of India & Ors., tl980] 4 SCC 428; Kam/a Kanya/al Khusha-
lani v. State of Maharashtra & Anr., [1981] I SCC 748; Rattan Singh v. A
State of Punjab & Ors., [1981] 4 sec 481; Youssuf Abbas v. Union of
India & Ors., [1982] 2 SCC 380; Asha Keshavrao Bhosale v. Union o}
India & Anr., [1985] 4 SCC 361; Aslam Ahmed Zahire Ahmed Shaik v.
Union of India & Ors., [1989] 3 SCC 277; T.A. Abdul Rahman v. State
of Kera/a & Ors., J.T. 1989 3 SC 444; Rama Dhondu Borade v. Shri B
V.K. Saraf, Commissioner of Police & Ors., [1989] I Scale Vol. I
22; Dr. R.K. Bhardwaj v. The State of Delhi & Ors., [19531 SCR 708;
D.S. Roy v. State of West Bengal, [1972] 2 SCR787; P.D. Deorah v.
The District Magistrate, Kamrup & Ors., [1974] 2 SCR 12; NP. Umrao
v. B.B. Gujral & Ors., [1979] 2 SCR 315 at p. 321; V.C. Jawantraj
Jain v. Shri Pradhan & Ors., [1979] 3 SCR 1007; Bal Chand Choraria
v. 'Union of India & Ors., [1978] 2 SCR 401; Smt. Kavita v. The State of C
Maharashtra & Ors., [1981] 2 Ci-1. L.J. 1262: AIR 1981SC1641; A.K.
Roy v. Union of India, [1982] Vol. 88 Crl. L.J. 340; and State of Rajasthan
v. Shamsher Singh, [1985] Suppl. I SCR 83, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal D
No. 624 of 1989.
From the Judgment and Order dated 31.7.1989 of the Punjab
and Haryana High Court in Crl. W .A. No. 2365 of 1988.
K. Parasaran, Attorney General and R.S. Suri for the E
Appellant..
Kapil Sibal, H.S. Randhwa and Ms. Kamini Jaiswal for the
Respondents.
The Judgment of the Court was delivered by F
K.N. SAIKIA, J. Special leave granted. Heard learned counsel
for the parties.
The State's appeal is from the Judgment of the High Court of
Punjab and Haryana dated 31.7.1989 passed in Criminal Writ Petit.ion G
No. 2365 of 1988 quashing the detention order of Sukhjinder Singh,
father of the respondent, under the National Security Act.
Sri Sukhjinder Singh has been under detention pursuant to the
Government of Pm1jab, Department of Home Affairs and Justice's
Order dated 28.5.1988, passed in exercise of the powers conferred by H
424 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
sub-section (2) of section 3 of the National Security Act 1980 (No. 65
A
of 1980), hereinafter referred to as 'the Act'; read with section 14A as
inserted by National Security (Amendment) Act, 1987, with a view to
preventing him from indulging in activities prejudicial to the security
of the State and maintenance of public order and interference with
efforts of Government in coping with the terrorist with disruptive
a activities. He was furnished with the grounds of detention contained in
9 paragraphs thereof and saying that on account of the said activities,
the President of India was satisfied that he should be detained. As no
arguments have been based on the grounds themselves, we have not
extracted them. The detenu was also informed that he had a right to
make representation in writing against the detention order and if he
wished to make any such representation, he should address it to the
0 State Government through the Superintendent of Jail, and that as soon
as possible, his case would be submitted to the Advisory Board within
the stipulated period from the date of his detention and if he wished to
make a representation to the Central Government, he should address ·
it to the Secretary, Government of India, Ministry of Home Affairs
(Department of Internal Security) North Block, New Delhi through
the Superintendent of Jail where he was detained. It further stated that
he had also a right to appear before the Advisory Board for represent-
ing his case, and if he wished to do so, he should inform the State
Government through the Superintendent of Jail in which he was
detained.
It appears that the detenu's son Sukhpal Singh filed Criminal
Writ Petition No. 1393 of 1988 in the High Court of Punjab and
Haryana praying, inter alia, for a writ of habeas corpus; quashing of
the detention order; for production of the detenu in court on the date
of hearing; for directing the respondents to arrange the presence of the
II' . detenu at Chandigarh before the Advisory Board; and for directing the
respondents to make arrangements and pay for the expenses required
to be incurred for arranging the presence of detenu's witnesses to be
prciduced before the Board at Agartala and also of the relatives and
the counsel of the detenu so as to effectively assist him in regard to
presenting his case before the Advisory Board.
The High Court by order dated 27.9.1988 dismissed the Criminal
Writ Petition, but ordered that "the petitioner would approach the
Advisory Board stationed at Chandigarh with the request for allowing
the detenu to produce evidence before it at Agartala and in case his
prayer was granted by the Board, the expenses for taking those witnes-
H ses to Agartala would be borne by the respondent/State."
STAIB OF PUNJAB ,, SUKHPAL SINGH (SAIKIA, J.] 425
Sukhpal Singh later moved Criminal Writ Petition No. 2365 of
A
1988 in the.f{iglj Court of Punjab and Haryana for quashing the deten-
tion order contending, inter alia, that the order of detention was pas-
sed on 28.5.1988 in a cursory and routine manner wi\hout application
of mind, much less with subjective satisfaction inasmuch as no case at
all was registered against the detenu for his 'alleged public utterences
as stated in the grounds of detention and, therefore, the detention B
order was liable to be quashed; that consideration of the detenu's
representation filed with the State Government on September 1, 1988
was inordinately delayed for two months till October 31, 1988 and
even thereafter the State took ~ long days to convey its rejection and
the representation addressed to the detaining authority had neither
been considered nor disposed of; and that detention was confirmed C
without affording the detenu any chance of appearing and producing
witnesses before the Advisory Board in terms of the High Court's
order dated 27 .9.1988 in Criminal Writ Petition No. 1393 of 1988.
The High Court upheld the above contentions of the petitioner,
namely, lack of subjective satisfaction, delay in considering represen- D
tation and the denial of opportunity to appear before the Advisory
Board; and accordingly quashed the order of detention and ordered
the detenu to be set at liberty forthwith unless required in connection
with any other case.
The learned Attorney General of India for the appellant assail- E
ing the findings of the High Court submits that the High Court's find-
ing that there was no subjective satisfaction of the detaining authority
simply because no criminal case was registered against the detenu for
his public speeches is erroneous both in law and facts. The allegations
were that during the period from November 19, 1987 to May 11, 1987
the detenu made 9 provocative speeches as stated in the grounds of F
detention inciting communal hatred and violence between Hindus and
Sikhs, inciting Sikhs to armed violence against the Government es-
tablished by Jaw· both in the State and in the Centre and making the
offer of monetary and other assistance to the terrorists. When the
. detention order was passed the detenu was already detained in Burail
Jail and the detention order itself said that he was already in custody G
and was taking steps to get himself released and there was every likeli-
hood of his being released from custody; and that in the event of his
release he was likely to resume such prejudicial acitivites in future and
there was thus compelling necessity to pass the order. He submits that
the subjective satisfaction of the detaining authority was based on
pertinent materials and it had in mind the question whether the pro- H
426 , SUPREME COURT REPORTS [1989) Supp. 1 S.C.R.
secution of the detenu would be possible and sufficient. Mr. Kapil
A
Sibal, learned counsel for the respondents supporting the finding of
the High Court reiterates that the fact that. no criminal case was
registered during the period of giving the alleged speeches clearly
showed that there was non-application of mind preceding the deten-
tion order. We find force in the submission of the learned Attorney
B General. The detention order itself said that the detenu was already in
custody and was likely to be released wherefore it was necessary to
order for his preventive detention. It is not denied that the above
relevant niaterials were placed before the detaining authority. The act
nowhere provides that the detaining authority cannot resort to preven-
tive detention without first criminally prosecuting the detenu. A clear
distinction has to be drawn between preventive detention in which
c anticipatory and precautionary action is taken to prevent the recur-
rence of apprehended events, and punitive detention under which the
action is taken after the event has already happened. It is true that the
ordinary criminal process of trial is not to be circumvented and short-
circuited by apparently handy and easier resort to preventive deten-
D tion. But the possibility of launching a criminal prosecution cannot be
said to be an absolute bar to an order of preventive detention. Nor
would it be correct to say that if such possibility is not present in the
mind of the detaining authority the order of detention would necessa-
rily be bad. The failure of the detaining authority to consider the
desirability of launching a criminal prosecution before ordering pre-
H ventive detention may in the circumstances of a case lead to the con-
clusion that the detaining authority had not applied its mind to the
important question as to whether it was necessary to make an order of
preventive detention but such is not the case here. In this regard one
has to bear in mind the relevant facts and cir.cumstances of a case
including the time and place concerned. In this view we find support
F from the decision in Fazal Ghosi v." State of U.P. & Ors., AIR 1987 SC
1877: [1987) 3 SCR 471, wherein it was pointed out that the Act
provided for preventive detention which was intended where it was
apprehended that the persons might act prejudicially to one or more
considerations specified in the statute, and the preventive detention
was not intended as a punitiv~ measure for curtailment of liberty by
G way of punishment for the offence already committed. Section 3 read
with Section 14A of the Act clearly indicat~d that the power of deten-
tion thereunder could be exercised only with a view to preventing a
person from acting in a manner which might prejudice any of the
situations set forth in the Section. To appy what was said in Rex v.
Halliday, Ex parte Zadig, 1917 AC 260, one of the most olwious.means
H of taking precautions against dangers such as are enumerated is to
STAIE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.] 427
impose some restriction on the freedom of movement of persons
whom there may be any reason to suspect of being disposed to commit A
what is enumerated in s. 3 of the Act. No crime is charged. The
qeustion is wheter a particular person is disposed to commit the pre-
judicial acts. The duty of deciding this question is thrown upon the
State. The justification is suspicion or reasonable probability and not
criminal charge which can only be warranted by legal evidence. It is B
true' that in a case in which the liberty of such person is concerned we
.cannot go beyond natural construction of the statute. It is the duty of
this Court to see that a law depriving the person of his liberty without
the safeguards available even to a person charged with crime is strictly
complied with. We have, however, to remember that individual liberty
is allowed to be curtailed by an anticipatory action only in interest of
what is enumerated in the statute.
c
In actual practice the grounds supplied operate as an objective
test for determining the question wheter a nexus reasonably exists
between grounds of detention and the detention order or whether
some infirmities had crept in. A conjoined reading of the detention D
order and the grounds of detention is therefore necessary. It is, as was
held in Ujagar Singh v. State of Punjab, AIR [1952) SC 350: [1952) SCR
756, largely from prior events showing tendencies or inclinations of a
man that inference can be drawn whether he is likely in future to act in
a prejudicial manner. But such conduct should be reasonably proxi-
mate and should have a rational connection with the conclusion that E
the detention of person is necessary. The question of relation of the
activities to the detention order must be carefully considered. Though
the possibility of prosecution being launched is not an irrelevant con-
sideration, failure to consider such possibility would not vitiate the
detention order. In Haradhan Saha v. The State of West Bengal &
Ors., [1975) 3 SCC 198 the Court did not lay down that possibility of a F
prosecution being launched was an irrelevant consideration, not to be
borne in mind by detaining authority but it laid down that the mere
circumstance that a detenu was liable to be prosecuted would not by
itself be a bar to the making of an order of preventive detention. It did
not follow therefore that failure to consider the posslfiiiity of criminal
prosecution being launc.hed could ever lead to the conclusion that a G
detaining authority never applied its mind and the order of detention
was therefore bad. Is it correct to say that if such possibility was not
. present in the mind of the detaining authority, the order of the deten-
tion is necessarily bad? Unless it clearly appears that preventive deten-
tion is being resorted to as the line of least resistance where criminal
prosecution would be the usual course, no fault can be found with it. H
428 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
What is to be seen is whether the detaining authority has applied its
mind or not to the question whether 1t was necessary to make preventive
detention. ln the instant case there is evidence of application of mind.
The proximity between the date of commission of an offence and of
detention order cannot also be said to be absent in this case. As we
have already seen the power of preventive detention is qualitatively
B different from punitive detention. The power of preventive detention
is precautionary po,.;er exercised reasonably in anticipation and may
or may not relate to an offence. It cannot be considered to be a parallel
proceeding. The anticipated behaviour of a person based on his past
conduct in the light of surrounding circumstances may provide suffi-
cient ground for detention. It cannot be said that the satisfaction of the
C detaining authority on the basis of his past activities that if the detenu
were to be left at large he would indulge in similar activities in future
and thus act in a' manner prejudicial to the maintenance of public order
etc. shall not be based on adequate materials. Public safety ordinarily
means security of the public or their freedom from danger. Public
order also .implied public peace and tranquillity. There is no escape
D from the conclusion that the terrorists and disruptive activities distrupt
·public peace and tranquillity and affect the freedom of the public from
danger to life and property. Disruption means the act of bursting and
tearing as under.- Disruptive means producing or resulting from ,or
attending disruption. Therrorism means the act of terrorising; unlaw-
ful acts of violence committed in an organised attempt to over-throw a
f. Government or like purposes. Terrorist means one who adopts or
supports the policy of terrorism. The terrorist and disruptive activities
are naturally distruptive of public peace, tranquiility and develop-
ment. In Hemlata Kantilal Shah v. State of Maharashtra and Ors., AIR
1982 SC 8: [ 1982] 1 SCR 1028, it was held that the prosecution or the
absence of it is not an absolute bar to an order of preventive detention
F bui the authority is to satisfy the court that it had in mind the question
of possibility- of criminal prosecution while forming the suhjective
• satisfaction by the detaining authority. It may be based on inference
from the past conduct and antecedent history of the detenu. The High
Comt unqer Ap. 226 and Supreme Court under Art. 32 or 136 do not
sit in appeal from the order of preventive detentfon. But the Court is
G only to see whether the formality as en joined by Art. 22(5) had been
complied with by the detaining authority, and if so done, the Court
carinot examine the materials before it and find that the detaini9g
authority should not have been satisfied on the materials before it and_
detain the detenu. In other words, the Court cannot question the
sufficiency of the grounds of detention for the subjective satisfaction of ·
H the authority as pointed out m Ashol Kumar v. 'Delhi Administration
STATE OF PUNJAB v. SUKHPAL SINGH (SAIKIA, J.] 429
& Ors., 'AIR 1982 SC 1143: [1982] 3 SCR 707. Those who are respons1- A
ble for the n:i_tjonal security or for the maintenance. of public order
must be the juog~_of what the national security or public order
requires. Preventive detention is devised to afford protect.ion to
society. The object is not to punish a man for having done something
..
but to intercept before he does it and to prevent him from doing. The
justification for such detention is suspicion or reasonable. probability B
and not criminal conviction .which can only be warranted by legal
evidence. Thus, any prevent.ive measures even if they involve some
restraint or hardship upon individuals, do not partake in any way of
the nature of punishment, but ·are taken by way of prosecution' to
prevent mischief to the State. There is no reason why executive ca'!not
take .recourse to its powers of preventive detention in those ca8es C
where thi; executive is genuinely satisfied that no prosecution can pbs-
sibly succeed against the detenu because he had influen.ce over witnes-
ses and against him no one is prepared to dep0se.· However, pusil-
lanimity on the part of the executive has to be deprecated and pusil-
lanimous ordets avoided.
D
It is submitted that-ifi the instance case, there. were sufficient
materials to show that the detenu would act in the future to the pre-
judice of the maintenance of public order, security of the State and ,tne
·Government's effort to curb terrorism. From the nature and contents
of his speeches stated in the grounds of detention there was sufficient
justification for the inference that he would repeat such speeches if bot 'E
preventively detained. Again when grievous crime again~! the cii>m-
munity was committed it would surely be subject to the p~nal law and
stringent sentences, but at the same time it could be considered unsafe
·to allow him the opportunities to repeat prejudicial acts during jthe
period the penal process was likely to take. The learned Attorney
General refers us to Giani Bakshish Singh v. Government;of India & F
Ors., _AIR 1973 SC 2667: [1974] 1 SCR 662, Smt. Hemlata v. State of
Maharashtra & Ors., (Supra) and Raj Kumar Singh v. State of Bihar & •
Ors., AIR 1986 SC 2173: [1986] 4 sec 407, submitting that the possi-
bility of criminal prosecution was no bar to order any prevent.ive
detention and that the court should not substitute its decision or
opinion in place of decision of the authority concerned on the;question G
of necessity of preventive detention. "Possibility of a prosecution or
the absence of it is not absolute bar to· an order of preventive deten-
tion; the authority may prosecute the offender for an isolated act or
acts of an offence for violation of any criminal law, but if it is satisfied
that the offender has a tendency to go on violating such Jaws, then
there will be no bar for the State to detain him under a Preventive H
430 SUPREME COURT REPORTS [ 1989] Supp. 1 S.C.R.
A Detention Act in order to disable him to repeat such offences. The
detaining authority is not the sole judge of what national security or
public order .requires. But neither is the court the sole judge of the
position. When power is given to an authority to act on certain facts
and if that authority acts on relevant facts and arrives at a decision
which cannot be described as either irrational or unreasonable, in the
B sense that no person instructed in law could have reasonably taken
that view, then the order is not bad and the Court cannot substitute its
decision or opinion in place of the decision of the authority concerned
on the necessity of passing the order."
Following Hemlata (supra) it could be said that in this case of
C prosecution it may not be possible to bring home the offender to book
·as witnesses may not come forward to depose against him out of fear,
or it may not be possible to collect all necessary evidence without
unreasonable delay and expenditure to prove the guilt. of the offender
beyond reasonable doubt.
:D Considering the relevant facts and circumstances including the
time and'place, the contents of the detention order and the allegations
in the grounds of detention in this case, we are of the view that non-
registration of any criminal case could not be said to have shown
non-application of mind or absence of subjective satisfaction.on the
part of the detaining authority.
Assailing the finding as to delay in disposing of the detenu's
representation, the learned Attorney General submits that on 1.9.1988
the detenu filed representation against his detention addressed to the
President of India through the Home Secretary, Government of
Punjab and the Superintendent of District Jail, Agartala (Tripura).
F The State Government was not aware of pendency of any such rep-
resentation with it. On 13.9.1988 the Central Government issued a
• teleprinter message whkh was duly received on 14.9.1988 in which the
Central Government wanted to know the date on which the grounds of
detention were supplied to the detenu and also sought parawise com-
ments on the representation of the detenu. However, the Central
G Government did not send any copy of the representation to the State
Government. Even so, it directed the police, vide letter dated
14.9.1988, to supply the required information to the Central Govern-'
ment. It was intimated to the Central Government that parawise
comments on .the representation could not be offered as copy of the
representation was not available with the State of Punjab. The Central
H Government vide teleprinter message dated 6.10.1988 which was
STATE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.I 431
received on 10.10.1988 intimated that the photostat copy of the
A
representation had been sent along with the post copy of the tele-
printer message. The representation was duly received on 19.10.1988
by the State of Punjab and it was examined at various levels on
19.10.1988 (20.10.1988 was a holiday), 21.10.1988 (22.10.1988 and
23.10.1988 were holidays), 24.10.1988 (25.10.1988 was again a holi-
day), 26.10.1988, 27.10.1988 and 28.10.1988. The representation was B
duly put up before the competent authority who was pleased to reject
the representation after due deliberation and consideration on
28.·10.1988. Thus, according to the learned Attorney General, the
State of Punjab from the time of receiving the representation and till
the time of its final disposal did not take more than 9 days, obviously
excluding the aforesaid 14 holidays. According to him this was a C
miraculous job done in disposing of the detenu's representation and
the intimation of the rejection was conveyed to the Superintendent of
Jail, Agartala vide letter dated 31.10.1988, who informed the detenu
on 8.11.1988. Thus the detenu's representation dated 1.9.1988 was
disposed of by the State Government on 28.10.1988 and the detenu
was informed only on 8.11.1988 i.e. after more than two months. It D
was pointed out by Mr. R.S. Suri, learned counsel for the appellant,
that excepting the photostat copy received from the CentrJl Govern-
ment no _separate representation was at all received by the State
Government of Punjab. The Central Government also rejected the
representation before them after due consideration on December 21,
1988 and duly informed the detenu. E
Mr. Kapil Sibal, the learned counsel for the detenu states that
two copies, one meant for the Central Governmeni and the other
meant for the State Government, were sent by the detenu on the same
date. The learned Attorney General contends that the delay was
caused by the representation having been addressed to the President F
of India, wherefore, the copy went to the Central Government. Mr.
Sibal, however, assets that the detention order-.:.having said; ''whereas
the President of India is satisfied", the detenu was required under law
to address the representation to the President of Irldia and in view of
the. fact that it was routed through the Superintendent of the District
Jai\, Agartala (Tripura) and the Home Secretary, Government of G
Punjab, there was no reason why it should not have been delivered to
the State Government of Punjab. The learned Attorney General
points out that the detention order itself having said that if the detenu
wished to make such representation, he should address it to the State
Government through the Superintendent of Jail as soon as possible
and the grounds of detention having a!So similarly stated that the H
432 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
detenu should address the representation to the State. Government
A
through the Superintendent of Jail, the delay caused up till the receipt
of the photostat copy from the Central Government must be attributed
to the detenu himself and the State Government could not be blamed
and the detention order could not be.said to have been vitiated by any
latches, negligence or delay in disposing of the representation, under
B the facts and circumstances stated above.
The State of Punjab having bi:en under the President's rule at the
0
relevant time and the detention order itself having stated that it was
the satisfaction of the President in passing the detention order Mr.
Sibal points out that it could not be said to have been a fatal mistake in
the representation to have been addressed to the President of India,
c Rashtrapati Bhawan, New Delhi and the same being routed through
the Superintendent of the District Jail, Agartala (TRIPURA), and the
Home Secretary of the State of Punjab, there was no reason why the
same should not have been received by the State Government of Pun-
jab. However it appears that the representation said to have been
D meant for the State Government was not received by the State Gov-
ernment at all. The detenu cannot be said to have deliberately caused
the dday. Though we feel that in view of the clear instructions in the
grounds of detention that he should address the representation to the
State Government through the Superintendent of the Jail where he
was detained should have been followed. May be this was due to the
E fact that Punjab was under President's rule at the relevant time but
Rashtrapati Bhawan, New Delhi was not the proper destination of the
representation to the State Government.
It is a settled law that in cases of preventive detention expedi-
tious action is required on the part of the authorities in disposing of the
F detenu's representation. In Jayanarayan Sukul v. State of West Bengal,
[ 1970] 3 SCR 225 it was laid down that the consideration of the
representation of the detenu by the appropriate authority was entirely
independent of any action by the Advisory Board including the consi-
deration of the representation by the Advisory Board. There should
not be any delay in the matter of consideration. It is true that no hard
G and fast rule can be laid down as to the measure of time taken by the
appropriate authority for consideration but it has to be remembered
that the Government has to be vigilant in the governance of the citi-
zens. A citizen's right imposes correlative duty on the State. In Frances
Coralie Mullin v. W.C. Khambra and Ors., [1980] 2 SCC 275, it was
reiterated that the detaining authority must consider the representa-
H tion as soon as possible, and this preferably, must be before the
STATE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.] 433
representation is forwarded to the Advisory Board before the Ad-
A
visory Board makes its report and the consideration by the detaining
authority of the representation must be entirely independent of the
hearing by the Board or its report, expedition being essential at every
stage. The time imperative cannot be absolute and the Court's obser-
vations are not to be so understood, and there has to be lee-way
depending on the facts and circumstances of the case. However, no B
allowance can be made for lethargic indifference or needless procrasti-
nation but allowance has to be made for necessary consultation where
legal intricacies and factual ramifications are involved. The burden of
explaining the departure from the time imperative is always on the
detaining authority. The emphasis is on the constitutional right of a
detenu to have his representation considered as expeditiously as possi-
ble and it will depend upon the facts and circumstances of each case c
whether or not the appropriate Government has disposed of the case
as expeditiously as possible. In F. C. Mullin's case the representation
of the detenu made on December 22, 1979 was not communicated to
the Advisory Board as it ought to have been, when the Board met on
January 4, 1980 and the detaining authority awaited the hearing before D
the Advisory Board and took a decision thereafter. Under the facts
and circumstances of that case where the detenu requested for copies
of statements and documents collection of which took time, it was held
that if there appeared to be any delay, it was not deemed due to any
want of care but because the representation required a thorough
examination in consultation with investigators of facts and advisors on E
law and as such though the Administrator considered the representa-
tion of the detenu after hearing by the Board, the Administrator was
not entirely influenced by the hearing before the Board and the appli-
cation for habeas corpus was, therefore, dismissed. In State of Orissa
and Anr. v. Manila/ Singhania and Anr., AIR 1976 SC 456: [1976] 2
sec 808, it was held that the representation made by the detenu may F
be considered by the State Government as soon as possible i.e., with
reasonable despatch and if that is not done, it would have the effect of
vitiating the order of detention, but it is neither possible nor desirable
to 'lay down any rigid period of time uniformly applicable in all cases
within which the representation of the detenu must be considered by
the State Government. The Court would have to consider judicially in G
each case on the available material whether the gap between the
receipt of the representation and its consideration by the State
Government is so unreasonably long and the explanation for the delay
offered by the State Government was unsatisfactory as to render the
detention order thereafter illegal.
H
434 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
Article 21(5) of the Constitution enjoins that when any person is
A
detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as
may be, communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity of making
a representation against the order. Since A. K. Gopalan v. The State of
B Madras, AIR 1950 SC 27: [1950] SCR 88, there has been a catena of
decisions of this Court taking the view that the representation of the
detenu must be considered promptly by the State Government. In
John Martin v. State of West Bengal, [1975] 3 SCC 836 it was observed.
that Article 22(5) does not say which is the authority to which the·
representation shall be made or which authority shall consider it. Bys.
8( 1) of the Act the authority making the order is required to communi-
c cate to the detenu his grounds of detention and to afford him the
earliest opportunity of making a representation against the order to
the appropriate Government. In Khudiram Das v. The State of West
Bengal & Ors., [1975] 2 SCC 81 it was explained that "the constitu-
tional Imperatives enacted in Article 22(5) are two fold; ( 1) the detain-
D ing authority must, as soon as may be, that is, as soon as practicable ·
after the detenion, communicate to the detenu the grounds on which
the order of detention has been made and (2) the detaining authority
must afford the detenu the earliest opportunity of making a represen-
tation against the order of detention. These are the barest minimum
safeguards which must be observed before an executive authority can
E be permitted to preventively detain a person and thereby drown his
right of personal liberty in the name of public good and social secu-
rity." In State of Orissa & Anr. v. Manila/ Singhania & Anr., (supra)
the representation was made on October 21, 1974 and it was received
by the District Magistrate on the same day. The representation was
processed through the different authorities. The Chief Minister was
F absent from headquarters between November 7, 1974 and November
12, 1974 and immediately on return to headquarters the Chief Minister
disposed of the representation and rejected it on November 12, 1974.
It was found that there was no delay at any stage in movement of the
representation from one officer to another. Every one having dealt
with it promptly and after examining it submitted to the respective
G higher officer. The Chief Minister was out of the Capital and as soon as
she returned without any delay at all disposed of the representation.
Accordingly this Court did not see any gap between the receipt of the
representation and its consideration by the State Government which
could be said to be unreasonably long and the period had been
satisfactorily explained in the affidavit of the State. Accordingly the
H order of detention could not be held to be invalid on that ground. On
STATE OF PUNJAB v. SUKHPAL SINGH {SAIKIA, J.] 435
the other hand in Saleh Mohammed v. Union of India & Ors., [1980] 4
A
sec 428 a delay of 22 days in considering the representation of the
detenu was held to have violated Article 22(5) and .vitiated the deten-
tion order. The representation in that case was lying unattended in the
office of the Superintendent of Jail or the Inspector General of prisons
and accordingly it was held to have been a case of gross negligence and
chilling indifference and on that short ground alone the detention B
order was quashed. In Kam/a Kanya/al Khushalani v. State of
Maharashtra & Anr., [1981] 1SCC748 where the disposal of detenu's
representation was delayed for 25 days it was held that the continued
detention of the detenu was void and that it was of the utmost impor-
tance that all the necessary safeguards laid down by the Constitution
under Article 21 or Article 22(5) should be complied with fully and
strictly and any departure ·from any of the safeguards would void the c
order of detention. In Rattan Singh v. State of Punjab and Ors., [1981]
4 SCC 481 the representation to the State Government and the Central
Government were made by the detenu simultaneously though the Jail
Superintendent who should either have forwarded the representation
separately to the Governments concerned or else he should have D
forwarded them to the State Government with a request for the
onward transmission of the other representation to the Central
Government. "Someone tripped somewhere and the representation
addressed to the Central Government was apparently never forwarded
to it" with the inevitable result that the detenu had been unaccount-
ably deprived of a valuable right to defend and assert his fundamental E
right to personal liberty. Chandrachud, C.J. speaking for the Court
observed:
"But the laws of preventive detention afford only a mod-
~· icum of safeguards to persons detained under them and if
freedom and liberty are to have any meaning in our demo- F
cratic set-up, it is essential that at least those safeguards are
not denied to the detenus. Section 11(1) of COFEPOSA
confers upon the Central Government the power to revoke
an order of detention even if it is made by the State
Government or its officer. That power, in order to be real
and effective, must imply the right in a detenu to make a G
representation to the Central Government against the
order of detention. The failure in this case on the part
either of the Jail Superintendent or the State Government
to forward the detenu's representation to the Central
Government has deprived the detenu of the valuable right
to have his detention revoked by that Government. The H
436 SUPREME COURT REPORTS [ 1989) Supp. I S.C.R.
A continued detention of the detenu must therefore be held
illegal and the detenu set free."
In Youssuf Abbas v. Union of India & Ors., [1982) 2 SCC 380,
the detenu claimed to have made a representation against his deten-
tion 11n October 1, 1981. Government stated that an undated represen-
B tation was received by it from the District Magistrate on October 23,
1981. The Advisory Board met on October 23, 1981. Thereafter the
Government rejected the representation of the detenu on October
29, 1981. Admittedly the representation was not forwarded to the
Advisory Board. It appears that the representation was forwarded by
the Superintendent Centfal Jail to the Distict Magistrate on October
20, 1981. Why his representation was detained 'with the Superinten-
c dent, Central Jail from October 1, 1981 to October 20, 1981 was not
explained. On that ground alone the writ petition was allowed and the
detenu was directed to be set at liberty forthwith. In Asha Keshavrao
Bhosa/e v. Union of India & Anr., [1985) 4 SCC 361, it was found that
a representation was made by the petitioner on behalf of the detenu
D which was received in the office of the Chief Minister on November 28,
1984 and orders on that representation were passed on January 23,
1985 and the same orders were received on January 28, 1985. In the
representation made by the petitioner himself to the Chief Minister,
the order of detention was casually impugned but lot of attention
appears to have been bestowed on the necessity of keeping the detenu
E in a Bombay Jail instead of sending him to Nasik Road Prison as
directed in the Order of detention. A detailed representation was
made by the.Secretary of an association which espoused his cause and
that representation was received on November 29, 1984 in the Sec-
retariat of the Chief Minister and was forwarded to the Home Depart-
ment on December 3, 1984 and was finally disposed of on December
..
F 12, 1984 and the rejection thereof was communicated on December
13, 1984. This Court held that the petitioner was not entitled to make
tenable submission on the score of delay in disposal of the representa-
tion. In Aslam Ahmed Zahire Ahmed Shaik v. Union of India & Ors.,
[ 1989] 3 SCC 277, the Superintendent of Central Prison of Bombay to
whom the representation was handed over by the detenu on June 16,
G 1988 for more onward tansmission to the Central Government has
callously ignored and kept it unattended for a period of seven days and
as a result of that the representation reached the Government 11 days
after it was handed over to the Jail Superintendent without any expla-
nation despite opportunity given by this Court. Pandian, J. speaking
for the Court observed: .,
H
STATE OF PUNJAB v. SUKHPAL SINGH (SAIKIA, J.] 437
"In our view, the supine indifference, slackness and callous A
attitude on the part of the Jail Superintendent who had
unreasonably delayed·in transmitting the representation as
an intermediary; had ultimately caused undue delay in the
disposal of the appellant's representation by the Govern-
ment which received the representation 11 days after it was
handedover to the Jail Superintendent by the detenu. This B
avoidable and unexplained delay has resulted in rendering
the continued detention of the appellant illegal and con-
stitutionally impermissible."
Similarly in T.A. Abdul Rahman v. State of Kera/a & Ors., Jt. Today
1989 3 SC 444, the representation was submitted originally on C
25 .1.1988, but was got back and resubmitted on 2.2.1988 and was
received by the third respondent only on 16.2.1988 and took time upto
28.3.1988 in receiving the comments of the Collector of Customs.
Again there was a delay of seven days in forwarding the representation
to the Minister of State for Revenue with the comments of the Joint
Secretary, COFEPOSA section. In the opinion of their Lordships, the D
manner in which the representation had been dealt with revealed a
sorry state of affair in the matter of consideration of the representation
made by the detenu. It was not clear why such a long delay from
t 16.2.1988 to 28.3.1988 had occasioned in getting the comments from
the Collector of Customs. Their Lordships extracted what was said in
Rama Dhondu Borade v. Shri V.K. Saraf, Commissioner of Police & E
Ors., [1989] 1 Scale Vol. 1 p. 22:
"The. detenu has an independent constitutional right to
make his representation under Article 22(5) of the Con-
stitution of India. Correspondingly, there is constitutional
mandate commanding the concerned authority to whom F
the detenu forwards his representation questioning the cor-
rectness of the detention order clamped upon him and
requesting for his release, to consider the said representa-
tion within reasonable dispatch and to dispose the same a'
expeditiously as possible. This constitutional requirement
must be satisfied with respect but if this constitutional im- G
perative is observed in breach, it would amount to negation
of the constitutional obligation rendering the continued de-
tention constitutionally impermissible and illegal, since
such a breach would defeat the very concept of liberty-the'
highly cherished right which is enshrined in Article 21 of
the Constitution." H
438 SUPREME COURT REPORTS [1989] Supp. I S.C.R.
" ..... What is reasonably dispatch depends on the facts
A
and circumstances of each case and no hard and fast rule
can be laid down in that regard. However, in case the gap
between the receipt of the representation and its considera-
tion by the authority is so unreasonably long and the expla-
nation offered by the authority is so unsatisfactory, such
B delay could vitiate the order of detention."
Their Lordships accordingly held that the representation of the detenu
had not been given prompt and expeditious consideration and was
allowed to lie without being properly attended to and secondly the
unexplained delay in the disposal of the representation was violative of
Article 22(5) of the Constitution of India, rendering the order of
C detention invalid.
In the instant case we are satisfied that after receipt of the zerox
copy from the Central Government, the State Government took only
13 days including 4 holidays in disposing of the representation. Con-
D sidering the situation prevailing and the consultation needed in the
matter, the State Government could not have been unmindful of
urgency in the matter. But the facts remain that it took more than two
months from the date of submission of the representation to the date
of informing the detenu of the result of his representation. Eight days
were taken after disposal of the representation by the State Govern-
E ment. The result is that the detenu's constitutional right to prompt
disposal of his representation was denied and the legal consequences
must follow.
Assailing the finding of the High Court that opportunity was not
afforded to the detenu to appear and produce his witnesses before the
F Advisory Board, the learned Attorney General submits that the find-
ing is not correct inasmuch as in spite of the best endeavour on the part
of the detaining authority to produce the detenu and his witnesses ·
before the Board in terms of the High Court's order dated 27.9.1988,
the detenu himself on a lame excuse avoided appearing and producing
his witnesses before it and thereby left no other alternative than to
G tender its opinion to the State Government on 17 .11.1988 whereupon
th_e State Government confirmed the order of detention vide its order
dated 22.11.1988.
It appears that it was decided to hold the sitting of the Advisory
Board at Indore on 12.11.1988 which was admittedly a week before the
H mandatory last date for submitting the report. On 8.11.1988 the
STATE OF PUNJAB v. SUKHPAL SINGH ISAIKIA, J.] 439
detenu at Agartala prayed for postponement of the Board sitting. The
A
State Government informed the Board on the basis of Teleprinter
message dated November 8, 1988 received from Agartala that the
detenu was unable to undertake the journey from Agartala to Indore.
Thereafter, the arrangements made to carry the detenu and his witnes-
ses to Indore by plane, were also cancelled by the State Government of
Pun jab and the detenu was told through the Inspector General of B
Prisons, Tripura by communication dated 11.11.1988 as follows:
"In response to this office message dated 8.11.1988,
Government of Pun jab has informed me that next date'Of
hearing as fixed by the NSA Board, Punjab, will be
intimated. This is in connection with his prayer dated
8.11.1988 for postponement of hearing by the NSA Board, c
Punjab on 12.11.1988 in the District Jail, Indore. This may
kindly be noted."
Admittedly, the detenu was arrested on 28.5.1988. The total
period for Advisory Board's report under s. 14A (Z)(d)(i) was five D
months and three weeks. Reference to Advisory Board was made on
26.8.1988. So the period would expire on or about 19.11.1988. The
Board fixed 12.11.1988 for its sitting. The detenu prayed for adjourn-
ment as because of frozen joint he was unable to perform ablution and
tie his turban. Whether that was a lame excuse or not need not be
decided. The fact remained that he was told of another sitting of the E
Board. Having a week in hand it would perhaps have been possible to
hold another sitting of the Board and give the detenu an opportunity
which however, did not come. Of course the decision was that of the
Advisory Board and not of the State Government. The High Court·
rightly observed that there was a.communication gap. It is true that the
Advisory Board is not a )udicial body. It is charged with the responsi- F
bility of advising the Executive Government. But when it advises in
favour of the detenu, namely, that there was no sufficient cause for
detention, it would be binding upon the Government under s. 12(2) of
the Act to release the detenu forthwith. The detenu in this case did not
have that opportunity to show that there was no suffficient cause for
this detention. Expressing inability to appear once could not have G
been treated as the detenu's not desiring to be heard under s. 11(2) of
the Act. In fact he desired to be heard and to produce his witnesses.
The result was that despite the State Government's communication he
was deprived of this opportunity. What then would be the result?
As was observed in Dr. R.K. Bhardwaj v. The State of Delhi & H
440 SUPREME COURT REPORTS [1989] Supp. 1 S.C.R.
Ors., [1953] SCR 708 preventive detention is a serious invasion of
A
personal liberty and such meagre safeguards as the Constitution has
provided against the improper exercise of the power must be jealously
watched and enforced by the Court. Following D.S. Roy v. State of
West Bengal, (1972] 2 SCR 787 it can be said that Article 22(4) pro-
vides that no law providing for Preventive Detention shall authorise
B the detention of a person for a longer period than three months unless
the Advisory Board has reported within that period that there is in its
opinion sufficient cause for such detention. Law therefore mandates a t
reference to a Board and for it to report on the sufficiency or otherwise
of the detention which should be within three months from the date of
detention. It this case it is for this reason that after the Constitution •
every legislation dealing with Preventive Detention has made specific
c provision for confirmation and continuance of detention in view of the
constitutional mandate in Article 22(4). In this case, s. 11 of the Act
prescribes 5 months 3 weeks. Unless the Board has made a report to
the effect that there is a sufficient cause for such detention within that
period from the date of detention there can be no detention of a
0 person under any law for a longer period than that. Relying on the
observation of M.H. Beg, J. in P.D. Deorah v. The District Magistrate,
Kamrup & Ors., (1974] 2 SCR 12 it can be said that the gravity of the
evil to the community resulting from anti-social activities can not
furnish an adequate reason for invading the personal liberty of a citi-
zen, except in accordance with the procedure established by the Con-
stitution and the laws. The protection of personal liberty is largely
through insistence on observance of the mandatory procedure. In
cases of preventive detention observance of procedure has been the
bastion against wanton assaults on personal liberty over the years.
Social security is no doubt the most important goal of the State but it is
not the only goal of a good society. There are other important values in
a society. One of the foremost and fundamental right guaranteed in
the Constitution is personal liberty and one cannot be deprived of it
except by the procedure prescribed by law. Libertas inestimabi/is res
est. Liberty is an inestimable thing above price. Libertus omnibus
rebus favourabi/ier est. Liberty is more favoured than all things (any-
thing). It would be ironic if, in the name of social security, we would
G sanction the subversion of this liberty. When a certain procedure is
prescribed by the Constitution or the laws for depriving a citizen of his
personal liberty, we think it our duty to see that that procedure is
strictly observed. As long back as in N.P. Umrao v. B.B. Gujral &
Ors., (1979] 2 SCR 315 at page 321 it was held to be well settled that in
case of preventive detention of a citizen, the Constitution by Art.
H 22( 5) as interpreted by this Court, enjoins that the obligation of the
STATE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.] 441
appropriate Government is to afford the detenu the opportunity to
A
make a representation and to consider that representation and there is
the Government's obligation to constitute a Board and to communi-
cate the representation, amongst other materials, to the Board to
enable it to form its opinion and to obtain such opinion. It was al§o
reiterated that when liberty of the subject is involved under a preven-
tive detention law it is the bounden duty of the court to satisfy itself B
that all the safeguards provided by the law have been scrupulously
observed and that the subject is not deprived of his personal liberty
otherwise than in accordance with law. Two of these safeguards under
Art. 22 which relate to the observance of the principle of natural
justice and which a fortiori are intended to act as a check on the
arbitrary exercise of power, are to be found in Article 22(5) of the
Constitution. These safeguards might be designated as a regulative c
postulate of respect, that is respect for the intrinsic dignity of the
human person. The detention of individuals without trial for any
length of time, howsoever short, is wholly inconsistent with the basic
ideas of our Government. As was pointed out in V.C. Jawantraj Jain v.
Shri Pradhan & Ors., [1979] 3 SCR 1007 one of the two safeguards D
provided to a detenu is that his case must he referred to an Advisory
Board for its opinion if it is sought to detain him for a longer period
tahn three months and the other is that he should be afforded the
earliest opportunity of making a representation against the order of
detention and such representation should be considered by the detain-
ing authority as early as possible before any order is made confirming E
the detention. Neither safeguards is dependent on the other and both
have to be observed by the detaining authority. It is no answer for the
detaining authority to say that representation of the detenu was sent
by it to the Advisory Board and that the Board has considered the
representation and then made a report expressing itself in favour of
detention. Even if the Advisory Board has made a report stating that F
in its opinion there is sufficient cause for the detention, the State
Government is not bound by such opinion and it may still on consider-
ing the representation of the detenu or otherwise, decline to confirm
the order of detention and release the detenu. It is imperative for the
State Government to consider the representation of the detenu before
making the order confirming the detention. Fazal Ali, J. emphasised G
in Bal Chand Choraria v. Union of India and Ors., [1978] 2 SCR 401
that in matters where the liberty of the subject is concerned and a
highly cherished right is involved, the representation made by the
detenu should be construed liberally and not technically so as to frus-
trate or defeat the concept of liberty which is engrained in Art. 21 of
the Constitution of India. In Smt. Kavita v. The State of Maharashtra & H
442 SUPREME COURT REPORTS (1989] Supp. 1 S.C.R.
Ors., [ 1981] 2 Cr!. L.J. 1262 AIR 1981 SC 1641, it was emphasised that
A the Advisory Board is charged with the task of submitting the report
within the prescribed period after hearing the detenu, specifying its
opinion as to whether or not there is sufficient cause for the detention
of tfie person concerned.
B The Advisory Board, as was held in A.K. Roy v. Union of India,
(1982] Vol. 88 Cr!. L.J. 340, is to consider the question whether there
is sufficient cause for the detention of the person concerned and not
where- the detenu is guilty of any charge. The detenu may therefore
present his own evidence in rebuttal of the allegations made against
him and may offer other oral and documentary evidence before the
Advisory Barod in order to rebut the allegations which are made
c against him. If the detenu desires to examine any witnesses, he shall
keep them present at the appointed time and no obligation can be cast
on the Advisory Board to summon them. The Advisory Board, like
any other Tribunal, is free to regulate its own procedure within the
constraints of the Constitution and the statute. If report is submitted
D by the Advisory Board without hearing the detenu who desired to be
heard it will be violative of the safeguards provided under Article 22 of
the Constitution and ss. 10 and 11 of the Act. Failure to produce the
detenu, unless it is for wilful refusal of the detenu himself to appear,
will be equally violative of those provisions. In State of Rajasthan v.
Shamsher Singh, (1985] Suppl. 1 SCR 83 the importance of the pro-
E ceedings before the Advisory Board was highlighed. In fact it is the
only opportunity for the detenu of being heard along with his rep-
resentation for deciding whether there was sufficient cause for his
detention.
The increasing need for ensuring public safety and security in the
F State of Punjab and the Union Territory of Chandigarh has been re-
flected in the recent successive amendments of the National Security
Act (Act 65 of 1980) with which we are concerned. The Act was
amended by the National Security (Amendment) Ordinance, 1984,
which was repealed by the ~ational Security (Amendment) Act, 1984,
(18th May, 1984) (Ad No. 24 of 1984) which was deemed to have
G come into' force on the 15th day of April, 1984. Section 2 of this
amendment Act provided that the National Security Act, 1980 shall, in
iis application to the State of Punjab and the Union Territory of
Chandigarh, have effect subject to the amendments specified in ss. 3 to
5. Section 3 was amended to the extent that in sub-section (4) of s. 3 of
the Principal Act (detaining officer reporting to the State Govenment)
H in the proviso, for the words "10 days" the words "15 days" shall be
STATE OF PUNJAB v. SUKHPAL SINGH [SAIKIA, J.] 443
substituted and for the words "15 days" the words "20 days" shall be
A
substituted. Similarly in sub-section (1) of section 8 (communicating
grounds of detention to the detenu) for the words "10 days" the words
"15 days" shall be substituted. A new section namely, section 14A was
inserted after section 14. This was followed by the National Security
(2nd Amendment) Act, 1984 and the National Security (Amendment)
Act of 1985. This was followed by the National Security (Amendment) B
Ordinance of 1987 which was repealed by the National Security
Amendment Act, 1987 (Act No. 27 of 1987) which further amended
the Act in its application to the State of Punjab and the Union Terri-
tory of Chandigarh. The National Security (Amendment) Act, 1984,
section 4 of the National Security (2nd Amendment) Act, 1984, the
National Security (Amendment) Act, 1985 and the National Security
(Amendment) Ordinance, 1987 were thereby repealed. This was fol- t
lowed by the National Security (Amendment) Ordinance, 1988 which
was repealed by the National Security (Amendment) Act, 1988 (Act
No. 43 of 1988).
In Section 14A as inserted by the Amendment Act of 19~4, the D
provision was "where such person had been detained with a view to
preventing him from acting in any disturbed area, in any manner pre-
judicial to ....... "
It was by tbe National Security (Amendment) Act, 1987 (Act
No. 27 of 1987) that the provision of detention without obtaining the E
opinion of the Advisory Board for a period longer than 3 months, but
not exceeding 6 months, from the date of his detention where such
person had been detained with a view to preventing him 'in any dis-
turbed area'-(1) "from interfering with the efforts of Government in
coping with the terrorists and disruptive activities", was inserted.
F
We find that while sub-section (2) of section 3 of the Act before
the amendment of 1984 provided that the Central Government and the
State Government may if satisfied with respect to any person that with
a view to preventing him from acting in any manner prejudicial to the
security of the State or from acting in any manner prejudicial to the
maintenance of public order or from acting in any manner prejudicial G
to the maintenance of supplies and services essential to the community
it is necessary so to do, make an order directing that such person be
detained, section 14A as inserted by the Amendment Act of 1984
provided that notwithstanding anything contained in the foregoing
provisions of this Act any person in respect of whom an order of
detention has been made at any time before the 3rd day of April, 1986 H
444 SUPREME COURT REPORTS [1989) Supp. 1 S.C.R.
A may be detained without obtaining tbe opinion of tbe Advisory Board
for a period longer than three montbs but not exceeding six months,
from the date of his detention where such person had been detained
with a view to preventing him from acting, in any disturbed area, in
any manner prejudicial to (a) the defence of India; or (b) tbe security
of India; or (c) the security of the State; or (d) the maintenance of
B public order; or (e) the maintenance of supplies and services essential
to the community. The amendment Act of 1987 added of these the
ground "from interfering with the efforts of Government in coping with
the terrorist and disruptive activities."
Thus as a result of these amendments applicable to the State of
c Punjab and the Union Territory of Chandigarh we find on one hand
addition to the grounds of detention and on the other, extension of the
period during which a person could be detained without obtaining the
opinion of the Advisory Board. There is, however, no amendment as
to the safeguards provided under Article 22 and ss. 9, 10 and 11 of the
Act. Indeed, there could be no such amendment. This reminds us of
D what was said, of course in a slightly different context. "Amid the
clash of arms laws are not silent. They may be changed, but they speak
the same language in war and peace." Would laws speak in a different
language in internal disturbance? Lex uno ore omnes alloquitur. I;aw
addresses all with one mouth or v01ce. Quotiens dubia interpretatio
libertatis est secundum libertatem respondendum erit Whenever there is
E a doubt between liberty and bondage, the decision must be in favour of
liberty. So says the Digest.
The result in that this appeal fails and is dismissed. As ordered by
the High Court the detem1 is to be set at liberty forthwith, if he is not
required to be detained in connection with any other case.
F
R.N.J. Appeal dismissed.
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