Holding

The power of revocation conferred on the Central Government under section 14 of the National Security Act is a statutory power independent of the advisory‑board process, and the Central Government is not obligated to consider a second representation once it has already dealt with the detainee's application, so the detention remains valid.

Summary

The respondent was detained under the National Security Act, 1980, and made a representation under Article 22(5) of the Constitution, which was forwarded to the Advisory Board. He also filed a separate representation for revocation of his detention under section 14 of the Act to the Prime Minister. The Central Government had already considered the earlier representation (forwarded by the State) and rejected revocation, and it did not act on the second representation. The High Court held that the failure to consider the second representation rendered the detention illegal. The Supreme Court reversed, holding that the power of revocation under section 14 is a statutory power independent of the advisory‑board process and, once the Central Government has considered the representation, it is not obliged to entertain a second one; non‑consideration does not invalidate the detention. Consequently, the appeal was allowed and the order of detention was upheld.

Issues considered

Whether non‑consideration by the Central Government of a representation for revocation under s.14 of the National Security Act violates Article 22(5) of the Constitution.
Whether the power of revocation under s.14 is independent of the advisory‑board confirmation under s.8(f) and can be exercised without a separate representation.
Whether the State Government has a statutory duty to forward the detainee's representation to the Central Government.

Legislation cited

COFEPOSA Act, 1974s. 11(1)(b)
Constitution of Indias. 22(5)
Maintenance of Internal Security Act, 1971s. 14
National Security Act, 1980s. 10, s. 14, s. 3(3), s. 3(4), s. 3(5), s. 8(1), s. 8(b), s. 8(f)

Subjects

preventive detentionNational Security Actrevocation of detentionArticle 22(5)representationadvisory boardcentral governmentstatutory powerconstitutional safeguard

Judgment

789

STATE OF UTTAR PRADESH A

v.

ZAVAD ZAMA KHAN

... May4, 1984 B

'.(D.A. DESAI, A.P. SEN AND V. BALAKRISHNA ERADI, JJ.]

Pub/« Safety Laws-Natianal Security Act (Act XLV of 1980), Section 14-
Revocation of orders of detention-Due compliance with requirements of section
8(1) read with Article 22(5) of the Constitution though con1plied with, subsequent
c
representation for revocation to Prime Minister made through the counsel filed by
t'ie Central Government-Whether non-passing of any order on the revocation
representation vitiates the detention.

The facts are that the respondent made a represenation dated June 18, 1983
a~ainst an order of detention passed by the District Magistrate, Morada bad
D
dated Noven1ber 6, 1982 for his detention under sub-s. (3) of s. 3 of the National
Security Act, 1980, and the same was duly forwarded by the District Magistrate
to the Advisory Board on June 21, 1983. The State Government had in the
mean while on June 13, 1983 made a reference to the Advisory Board under s- 10
of the Act i.e. within three weeks from the date of det~ntion together with the
order of detention and the grounds therefor for its opinion. On June 23, 1983 E
the representation was examined by the Joint Secretary, Home Department who
marked the file to the Home Secretary on June 27, 1983 who on his turn placed
the file before the Chief Minister for his comments on June 27, 1983. The Chief
Minister tooA. to daysto study the file and ultimately passed an order rejec-
ting the representation. On July 2, 1983 the Stat_e Government forwarded
the representation made together with the commen~s to the Government of India
and the Central"Government rejected the same on July 19, 1983. F

It appears th<it on July 5, 1983 the respondent through his counsel simulta-
neously addressed two representations for revocation-of his detention under s. 14
) of the Act, one ad(ressed to the Prime Minister of India and the other to the Slate
Government. The representation made to the Central Government addressed
in the name of the Prime Minister was received in the Prime Minister's G
Secretariat on July 7, 1983 and the grievance of the respondent before the High
C~ourt was that the Central Government h<id not dealt with his application for the
revocation of the order of detention under s.14 of the Act. The l-ligh Court obser~
ved that the right of the detenu to make a representation to.the Central Government
for r....vocation of the order of detention unde_r s. 14 of Act was intended to be an
additional ch{'C 1< or safeguard against the improper exercise of its power of H
detention by the detaining authority or the State Governfnent and therefore the
failure on the part of the Central Government to consider the same was tanta-
mount 10 a denial of the consitutional safesuard as contemplated by Art. 22(5)
190 SUPREME COURT REPORTS [1984] 3 S~C.R.

A of·the Consti'.ution. It accordingly held the continued detention of the respon·
.
dent to be illegal.

Aggrieved by the Order, the State preferred an Special Leave.

Aile wing the appeal, the Court,
B •
HELD : (1) The constitutional imperatives of Art. 22(5) enjoin that where
a detenu simultaneously makes representation to the detaining authority as well
as an application under s. 14 of the Act, they must not be dealt with by the
appropriate Government at the same tin1e and there was no question of any
conflict of jurisdiction. If the Central Government were to revoke the order of
c detention under s. 14 of the Act, there would be no representation for the State
Governn1ent to consider, or refer to the Advisory Board under s. 8(b) of the Act
nor will th~re arise any question of Advisory Board making a report to it, or on
receipt of such a report, confirming the order of detention under section 8(f).
The other type of cases can be where notwithstanding that the order of detention
has been confinned under s. S(f) the appropriate Government may, at any time,
revoke the same under s. 14. The power of revocation conferred on the appro~
D priate Government un<ler s. 14 is independent of the power of confirming or
setting aside an order of detention under s. S(f) [795H ; 796A-D]

2. The pO\\'Cr of revocation conferred on the Central Government under
s. 14 of the Act is a statutory power which may be exercised on information
reCeived by the Central Governn1ent from its own sources including that supplied
by the State Gov:::rnment under sub-s. (5) of s. 3, or from the detenu in the form
E
of a petition or representation. It is for the Central Governn1ent to decide
whether or not it 'should revoke the order of detention in a particular case.
[796G-H]

-Any lapse on the part of State Government in forwarding the representation
n1ade by the detcnu to the Central Government ·for revocation of the order of
detention under s. 14 of the Act or non-consideration of the same by the Central
Government makes the continued detention of the detenu bad. [793B-C]

In the present case, however, the detenu was not deprived of the right of
making a representation to the detaining authority under Art. 22(5) of the Con-
G stitution read Withs, 8(1) of the Act. Although the detenu had no right to sim-
ultaneou~ly make a representation against the order of detention to the Central
Govcrn111ent under Art. 22(5) and there was no duty cast on the State Govern-
ment to forward the same to the Centr:il Government, nevertheless the State
Government forwarded the same forthwith. The ·Central Government duly
considered that representation which in effect was nothing but a representation
for revocation of the order of detention under s. 14 of the Act. That being so.
H it was not obligatory on the parr of the Central Government to consider a
second representation for revocation under s. 14 of the Act. [797A-D]
U.P. STATE v. z.z. KHAN (Sen, J.) 791

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 57 A
of 1984.

From the Judgment and Order dated 25-10-1983 of the
Allahabad High Court in Habeas Corpus WP. No. 8420 of 1983.

Manoj Swarup and Dalveer Bhandari for the appellant. B

Mrs. & Mr. Qamaruddin, Rizwan A. Hajiez and Desh Raj for
the respondent.
The Judgment of the Court was delivered by
• c
SEN, J. The State Government of Uttar Pradesh has pre-
ferred this appeal by special leave from the judgment and order of
the Allahabad High Court dated October 25, 1983 by which the
High Court issued a writ in the nature of habeas corpus quashing
an order of detention passed by the District Magistrate, Morada-
bad dated November 6, 1982 for the detention of the respondent D
under sub-s. (3) of s. 3 of the National Security Act, 1980 on being
satisfied that his detention was necessary "with a view to preven-
ting him 'from acting in any manner prejudicial to the maintenance
of public order."
E
It appears that the respondent is alleged to have committed
an offence of murder punishable under s. 302 and of causing dis-
appearance of evidence punishable under s. 201 of the Indian Penal
Code, 1860 in connection with the communal riots that occurred
in the Moradabad city. On November 6, 1982, the District
Magistrate, Moradabad passed the impugned order of detention ll
but it could not be served on the respondent as he was absconding.
As required under sub-s. (4) of s. 3, the District Magistrate forth-
with made a report of the fact to the State ·Government of Uttar
Pradesh that he had passed an order for the detention of the res-
pondent under sub-s. (3) of s. 3 of the Act, together with the G
grounds on which the order had been made and such other parti-
culars as, in his opinion, had a bearing on the matter. The State
Government received the order of detention on November 8, 1982
and approved of the same on November 11, 1982 under sub's. (5)
of s. 3, and as required thereunder, forwarded a report to the
Central Government on the next day i.e. on November 12, 1982. ff
The respondent surrendered to the police on May 24, 1983 and the
impligned order of detention was served on him in District Jail, ·
792 SUPREME COURT Rb1'0RTS [1984] 3 s.C,R,

A Moradabad on June 1, 1983 and the grounds of detention were fur•
nished to hirn on June 2, 1983.

The respondent made a representation dated June 18, 1983
through the Superintendent, District Jail, Moradabad and he
immediately forwarded the same to the District Magistrate. On
B June 20, 1983 the District Magistrate forwarded the representation
to the Advisory Board and the same was received by the Advisory
Board on June 21, 1983. The State Government had in the mean-
while on June 13, 1983 made a reference to the Advisory Board
under s. 10 of the Act i.e. within three weeks from the date of
detention together with the order of detention, and the grounds there-
0
fore, for its opinion. On June 23, 1983 the representation of the
respondent forwarded by the District Magistrate together with his
comment; was examined by the Joint Secretary, Home Department
The file was placed before the Home Secretary on June 27, 1983
who placed· it before the \ hief Minister with his comments. The
D Chief Minister took two days to study the file and ultimately passed
an order rejecting the representation on June 30, 1983. On July 2,
1983 the State Government forwarded the representation made by
the respondent together with its comments to the Government of
India and the Central Government rejected the same on July 19,
1983.
E
On July 5, 1983 the respondent through his counsel
D.S. Misra simultaneously addressed two representations for revo-
cation of his detention under s. 14 of the Act, one addressed to
the Prime Minister of India and the other to the State Government.
It appears that the representation made to the Central Government
F addressed in the name of the Prime Minister was received in the
Prime Minister Secretariat on July 7, 1983 and the grievance of the
respondent was that the Central Government had not dealt with his
application for revocation of the order of detention under s. 14 even
IlO\V,

G In his counter-affidavit by one M.L. Miglani, Desk Officer,
Ministry of Home Affairs, New Delhi, it was stated that the
Central Government had fully discharged its functions by expedi- .
tiously taking a decision on the earlier representation directly ad-
dressed by the respondent and it was under. no statutory obligation
H to consider the subsequent representation for revocation addressed
by the respondent through his counsel to the Prime Minister, I
was not a statuto1y representation for revocation of the impugned
u.P. STATE v. z.z. KHAN (Sen, J.) 793

order of detention under s. 14 and therefore it was not at all neces- A
sary for the Central Government to deal with jt,

· The High Court placing reliance on the decision of this Court
in Phillippa Anr.e Duke v. Stara of Tamil Nadu & Ors.(1) and certain
· of its own decisions held that the respondent had a right to make
an application to the Central Government for revocation of the B
·order of detention and the failure on the part of the Central
Government to apply its mind to it made the continue<! detention
illegal.

The only question canvassed in the appeal before us is that
the judgment of the High Court betrays complete lack of awareness c
of the nature of the constitutional safeguards enshrined under Art.
22(5) of the Constitution. It is urged that the constitutional impe·
i ratives enacted in Art. 22(5) are two-fold ; (I) The detaining autho-
rity must, as soon as may be i.e. as soon as practicable, after the
detention, communicate to the detenu the .grounds on whic.h the D
order of detention bas been made. And (2) The detaining autho-
rity must afford the detenu the earliest opportunity of making
representation against the order of detention. In the present ease,
it is said that the requirements of Art. 22(5) of the Constitution
. read with s. 8(1) of the Act had been duly complied with. There
is no question of any violation of Art. 22(5) or cif s. 8(1) and fur- E
ther that the grounds for detention set out the facts with sufficient
degree of particularity and they did furnish sufficient nexus for
forming the subjective satisfaction of the detaining authority. The
order of detention cannot therefore be challenged on the ground ·
that the grounds furnished were not adequate or sufficient for the
subjective satisfaction of the detaining authority, or for making an F
effective representation. It is further urged that there being due
compliance with the constitutional requirements of Art. 22(5) and
)
of s. 8(1), the High Court was wrong in holding that the continued
detention of the respondent was invalid merely because the Central
Government refused to act on his application for revocation of the
G
order of detention under s. 14 of the act. We find considerable
force in the submission.
We are not oblivious of the fact that this Court has in certaii:i
cases given expression to the view that any lapse on the part of the
State Government in forwarding the representation made for revo- H

(1);[1982h3 SCR ?69.
794 SUPREMH COURT REPORTS [1984) 3 S.C.R.

cation of his order of detention under s. 11( i)(b) of the COFEPOSA
Act, 1974 or the failure of the Central Government to expeditiously
consider the same was a denial of the constitutional right of beil}g
afforded "the earliest opportunity of making a representation
against the order" as contemplated by Art. 22(5). At one time it
was thought thats. 14 of the Maintenance of Internal Security Act,
B
1971 which was in pari materia with s. 14 of the Act, did not confer
any right or privilege on the detenu but there is a definite shift in the
judicial attitude, for which there appears to be no discernible basis. .J
In Shyam Ambalal Siroya v. Union of India & Ors(1)., the contention Jiii
was that be'cause a representation properly addressed to the Central
G Government to order revocation under s. 11 of the COFEPOSA
Act was not forwatd"d by the detaining authority to the Central
Government, the detention was illegal. The Court construed the power
conferred on the Central Government to direct revocation of an
order of detention under s. 1! of that Act to be "statutory". It was
observed that the power of the Central Government to revoke the
• order of detention implies that the dctenu can make a representa- •
tion for exercise of that power and a petition for revocation of an
order of detention should be dealt with reasonable expedition.
Since a representation properly addressed by the detenu of the
Central Government was not forwarded to the Central Govern-
ment, the continued detention of the detenu was held to. be ille.gal.

In Sabir Ahmed v. Union of India & Ors(2)., the Court held that
non-consideration by the Central Government of a representation J
for revocation made by the detenu under s. 11 of the COFEPOSA
Act made the continued detention to be bad, following the decision
in Shyam Amba/al Siroya's case, supra. It was however observed
that the power conferred bys. 11 on the Central Government was
a supervisory power and it was intended to be an additional check
or safeguard against the improper exercise of its power of detention
by .the detaining authority or the State Government.

G In Rattan Singh v. State of Punjab & Ors.(3 ), the Court went
still further. There was, in that case, a lapse on the part of the
State Government in forwarding the.· representation simultaneously
made by the detenu to the Central Government for revocation . of
the order of detention under s. 11 of the COFEPOSA Act. The
H
(I) [1980] 2 SCR 1078
(2) [1980] 3 SCR 738 (3) [1982] l SCR 1010
U.P. STATE v. z.z. KHAN (Sen, J.) 795

Court struck down the order of detention on the groud that there
was a ·denial of the right of making representation to the Central
Government for revocation ~f the order of detention under s. II of
the Act and this was tantamount to!a denial) of the constitutional
safeguard of Art. 22(5). ·
'
. Soon thereafter, the'Courtin Sat Pal v. State of Punjab & B
Ors.(') examined the nature of the power of revoc~ion conferred on
the Central Government under s. 11 · of the COFEPOSA Act and
he1d that it was iiUpervisoryin nat~re, and. it was observed : ·

"That is, as it should be, as~ under .our federal struc-
ture the Centre must always keep a vigilant eye in the
matter oflife and ·Jiberty of a citi.ren guaranteed under
Article 21.
•
Ours is a Constitution where there is a combination
of federal structure with unitary features while in a unitary
•
D
State there is only one Government; federal State involves
multi-Governments namely, national or federal Goyern-·
ment and the Governments of component .States. A fede-
ral State, in short, is a fusion ofseveral States into a single
State in regard to matters affeding common interest
leaving each component State to enjoy autonomy in regard
to other matters. Under o'llr Constitution, certain powers
vest in the central Government leaving certain to its com-
ponent units to ex·ercise autonomy in spheres assigned to.
them in the Constitution itself. · The ·component States are
not merely delegates or agents of the federal Government. ·
.Both federal and Stale Governments draw their authority F
from the same source, the Constitution. The conferment
of executive power on the States in relation to a subject
with respecfto which the1legisfatures of the States have no'
)
• power to make a law und~r Art. 258(2) must necessarily .be
subject to the administrative control of the Union under
G
Arts. 256 and 247(1),'fo the giving of such directions to the
States as.· may appear ·to the Government of India to be
necessary for that purpose."
It.was then .observed that the constitutional imperatives of
Art. 22(5) enjoin that where a detenu simultaneo11sly makes a re- II

(1). ~1982) 1 sec · 12,
796 SUPREME COURT REPORTS . [ 1984) 3 S.C.R.

presentation to the c(etaining authority as well.as an application for
revocation under s.· 11 of the Act. they must both be dealt_ with by
the appropriate Government at the same time' and there was no
question of any conflict of jurisdiction. To illustrate, it was said
that i_f the Cent,ial Government were to revoke an order of deten,
tion under s. 11 of the Act, there would . b~ no. representation for
B
the State Government. to consider, or refer'· the. Advisory Board ·
under s. 8(b) ; nor will there arise any question of Advisory Board
submitting a report to it, or Q~ receipt of such a report confirming
the order of detention under s. 8Cf). · It was further observed that
t!ie other types of cases would be ·where . notwithstanding ·that
0 the order of detention has been confirmed under s. S(f), the appro'
priate Government may, at·any time, revoke the same under s. _H
· of the Act. It was accordingly held th:it ·the power of revocation
.conferred on the appropriate Governme~t under- s. 11 is indepen-
dent of tfie power of confirming or setting aside an order of deten-
tion under s. 8(f) ..
D
As to the nature of th~ power of revocation conferred on• the
Central Government under s. 11 of the COFEPOSA Act,· it was •·
stated :

"The making of an application for revocation to the
B Central Governme~t ·under · s. 11 of the Act is therefore ·
part of the con_stitulicnal right a .citizen has against his_
"detention under a law relating to preventive detention,
While Art. ·72(5) contemplates the making of a ·representa-
tion against the order of detention to the detaining autho-
rity, which has to be referred by the appropriate ·Govern-
ment to the Advisory Board constituted ·under s. 8(a) of
the Act, Parliament has, in its wisdom, enacted s .. 11 ·and
conferred an additional safeguard agninot arbitrary _exe-
cutive action.'?

G The principle that emerges (rcim. all these decisions is that
the power of revocation conferred oil tl1e Central Government
·under s." 14 of the Act is a statutory power which may be exercised
on information received by the Central Government from .its own ·
sources including that supplied by the State Government under
H sub-s. (5) of s. 3 or from the detenu in the form of. a petition or
representation. It is for the Central Government to decide whe-
t!:ter o~ pot it should revoke tile order of ·detention in· a· par*ular
•
U.P. STATE I'. z.z. KHAN (Sen, J.) 797
case, In the present case, the dete.nu was not deprived• of the
A
right of making a representation to the detaining authority under
Art. 22(5) of the Constitution ·read with s. 8(1) of the Act. Al·
though the deteriu had no right to simuijaneously make a repre• .
senfafion against the order of qetention to the Central . Government
nnder Art 22(5) and there was no duty cast on. the State Govern-
ment to forward the same to the Central Government, neverthe· B
less the State Government forward the same forthwith. The
Centrai Government duly considered that representation whfoh ·in
effect was n()thing but a Representation for revocation of the. order
. of detention under s. 14 of the Act. That being so, it was nofobliga-
. tory on the part of the Central Government to consider a second
. representation for revocation under s. 14. We may profitably G.
refer to Phi/Uppa Anne D1ike's case, supra, where in somewhat
· ·. similar circumstances it was held· that failnre of· the Central
·. Government to consider a representatlQD for revo·cation of an
). order of detention under s: ll(l)(b) of the COFEPOSA Act handed
over to the Prirµe Mi.nister during her visit to England did not
render the continued detention invalid. It was observed :

"Representations f;om whatever source addressed to
whomsoever officer of one or other department of the
Government cannot be treated as a representation to the
Governmeritunder s. ll(S)(b) of the COFEPOSA Act." · Jil
•
> The re.suit therefor.e is. that the appeal Succeeds and is allo-
wed. The judgment and order of the. High Court is set aside and
the ·oroer .of detention passed by the District Magistrate under
sub-s. (3) ofs. 3 of the National Security Act, 1980 is maintained.
F

S.R. Appeal allowed.

•