SUBHASH POPATLAL DAVEversusUNION OF INDIA AND ANR.

                      [2012] 7 S.C.R. 61


               SUBHASH POPATLAL DAVE                                 A
                              v.
                UNION OF INDIA AND ANR.
           (Writ Petition (CRL.) No. 1.37 of 2011)
                        JULY 10, 2012
                                                                     B
     [ALTAMAS KABIR, GYAN SUDHA MISRA AND
              J. CHELAMESWAR, JJ.]
      Preventive Detention - Detention order - Right of a detenu
to be provided with the grounds of detention prior to his arrest
- Enactment of RT/ Act - Effect - Whether under the RT/ Act,         C
a detenu is entitled, in assertion of his human rights, to receive
the grounds under which he is to be detained, even before his
detention, at the pre-execution stage - Held: Notwithstanding
the provisions of the RT/ Act, the State is not under any
obligation to provide the grounds of detention to a detenu prior     D
to his arrest and detention - The provisions of the Constitution
prevail over any enactment of the legislature, which itself is a
creature of the Constitution - Since clause (5) of Article 22 of
the Constitution provides that the grounds for detention are
to be served on a detenu after his detention, the provisions         E
of s. 3 of the RT/ Act, cannot be applied to cases relating to
preventive detention at the pre-execution stage - S.3 of the
RT/ Act has to give way to the provisions of Clause (5) of
Article 22 of the Constitution - Constitution of India, 1950 -
Article 22(5) - Right to Information Act, 2005 - s. 3.               F
     Preventive Detention - Detention order - Challenge to, at
the pre-execution stage - Scope - Whether the five instances/
exceptions indicated in paragraph 30 of the Atka Subhash
Gadia's case, under which a detention order could be G
challenged at the pre-execution stage were exhaustive or only
illustrative - Held: The five examples indicated in Alka
Subhash Gadia's case were intended to be exemplar and not
exhaustive- To accept that it was the intention of the Hon'ble
                               61                                    H
    62        SUPREME COURT REPORTS               [2012] 7 S.C.R.

A Judges in Atka Subhash Gadia's case to confine the
  challenge to a detention at the pre-execution stage, only on
   the five exceptions mentioned therein, would amount to
  imposing restrictions on the powers of judicial review vested
  in the High Courts and the Supreme Court under Articles 226
B and 32 of the Constitution - Exercise of powers vested in the
  superior Courts in judicially reviewing executive decisions and
  orders cannot be subjected to any restrictions by an order of
  the Court of law - In various pronouncements of the law by
  Supreme Court, detention orders have been struck down,
c even without the apprehension of the detenu, on the ground
  of absence of any live link between the incident for which the
  detenu was being sought to be detained and the detention
  order and also on grounds of staleness - These issues were
  not before the Hon'ble Judges deciding Atka Subhash Gadia's
D case - Law is dynamic - The most precious right of a citizen
  is his right to freedom and if the same is to be interfered with,
  albeit in the public interest, such powers have to be exercised
  with extra caution and not as an alternative to the ordinary
  laws of the land - Issue relating to the right of a detenu to
E challenge his detention at the pre-execution stage on grounds
  other than those set out in paragraph 30 of the judgment in
  Atka Subhash Gadia's case, requires further examination -
  Constitution of India, 1950 - Articles 32 and 226.

F        The instant Special Leave Petitions and Writ Petitions
    were all directed against orders of preventive detention
    at the pre-execution stage.

        During the course of the hearing, it was submitted on
    behalf of some of the Petitioners that the decision
G   rendered in Alka Subhash Gadia case that a preventive
    detention order could be challenged at the pre-execution
    stage on the five grounds enumerated in the judgment,
    was no longer good law on account of the subsequent
    enactment of the Right to Information Act, 2005 (RTI Act).
H   A connected question which was raised was whether the
  SUBHASH POPATLAL DAVE v. UNION OF INDIA              63
                AND ANR.
aforesaid decision in Alka Subhash Gadia's case was per A
incuriam, since it did not have the occasion to notice
subsequent decisions on the same question. Another
question which was raised was whether the five
instances indicated in Alka Subhash Gadia's case, under
which a detention order could be challenged at the pre- B
execution stage, was exhaustive or whether they were
only illustrative.

     Directing the Special Leave Petitions and the writ
petitions to be listed again for final hearing and disposal, C
the Court

    HELD:

Whether the R.T.I. Act applies in cases of preventive
detention.                                            D

     1.1. Article 22 of the Constitution provides for
protection against arrest and detention in certain cases.
Clauses (1) and (2) of Article 22 set out the manner in
which a person arrested is to be dealt with and clause (1)   E
makes it clear that no person who is arrested is to be
detained in custody without being informed, as soon as
may be, of the grounds for such arrest. Clause (2)
provides that such a person who is arrested and detained
in custody has to be produced before a Magistrate within     F
a period of 24 hours of such arrest However, an exception
is made by clause (3), which provides that nothing in
clauses (1) and (2) shall apply, amongst others, to any
person who is arrested or detained under any law
providing for preventive detention. Clause (4) thereafter    G
sets out that no law providing for preventive detention
shall authorize such detention for more than three
months without following the procedure subsequently set
out. Clause (5) of Article 22 is very relevant. From the
opening words of the pro~ision, it is clear that the         H
    64       SUPREME COURT REPORTS            [2012] 7 S.C.R.

A grounds on which the person is detained is to be
   communicated to him when the person has actually been
  detained. If one were to read clauses (1) to (6) of Article
  22 as a whole, it is more than obvious that the scheme
  envisaged therein provides for the protection of a person
B arrested in connection with an offence by providing for
  his production before the Magistrate within 24 hours of
  his arrest and also to avail the services of a lawyer, but
  an exception has been carved out in relation to detention
  effected under preventive detention laws. A detenu is not
C required to be treated in the same manner as a person
  arrested in connection with the commission of an alleged
  offence. On the other hand, preventive detention laws
  provide for the detention of a person with the intention
  of preventing him from committing similar offences in the
D future, at least for a period of one year. Section 3 of the
  R.T.I. Act, 2005, provides that subject to the provisions
  of the Act, all citizens would have the right to information.
  Section 8, however, makes an exemption from disclosure
  of information. While setting out the instances in which
E there would be no obligation to give any citizen
  information in the situations enumerated in Sub-Section
  (1), Sub-Section (2) provides that notwithstanding
  anything in the Official Secrets Act, 1923, nor any of the
  exemptions permissible in accordance with Sub-Section
F (1 ), a public authority may allow access to information, if
  public interest in disclosure outweighs the harm to the
  protected interests. Even under Sub-Section (1) of
  Section 8 of the RTI Act, the legislature made an
  exception to the disclosure of information which could
G be contrary to the interests of the nation, subject to the
  provision that such information may also be allowed to
  be accessed in the public interest, which overweighed
  the personal interests of the citizen. Not much discourse
  is required with regard to the primacy of the provisions
H of the Constitution, vis-a-vis the enactments of the
  SUBHASH POPATLAL DAVE v. UNION OF INDIA                65
                AND ANR.
legislature. The provisions of the Constitution will prevail   A
over any enactment of the legislature, which itself is a
creature of the Constitution. Since clause (5) of Article 22
provides that the grounds for detention are to be served
on a detenu after his detention, the provisions of Section
3 of the R.T.I. Act, 2005, cannot be applied to cases          B
relating to preventive detention at the pre-execution
stage. In other words, Section 3 of the R.T.I. Act has to
give way to the provisions of Clause (5) of Article 22 of
the Constitution. Even the provisions relating to
production of an arrested or detained person, contained        C
in clauses (1) and (2) of Article 22 of the Constitution,
have in their application been excluded in respect of a
person detained under any preventive detention law.
Notwithstanding the provisions of the R.T.I. Act, 2005, the
State is not under any obligation to provide the grounds       D
of detention to a detenu prior to his arrest and detention,
notwithstanding the fact that in the cases of Choith
Nanikram Harchandai and Suresh Hotwani & Anr., the
grounds of detention had been provided to the detenu
under the R.T.I. Act, 2005, at the pre-execution stage. The    E
procedure followed under the R.T.I. Act, in respect of the
said writ petitions cannot and should not be treated as a
precedent in regard to the contention that under the RT.I.
Act, 2005, a detenu was entitled, in assertion of his human
rights, to receive the grounds under which he was to be        F
detained, even before his detention, at the pre-execution
stage. [Paras 20, 21, 22 and 23) [82-B-D, G-H; 83-A-E; 84-
C-H; 85-A-C]

   Whether the five exceptions mentioned in A/ka               G
Subhash Gadia's case regarding the right to challenge an
order of detention at the pre-execution stage, were
exhaustive or not.
   1.2. The decision in Atka Subhash Gadia's case,
appears to suggest several things at the same time. The        H
   66       SUPREME COURT REPORTS               [2012] 7 S.C.R.


A Three-Judge Bench, while considering the challenge to
   the detention order passed against the detenu, at the pre-
   execution stage, and upholding the contention that such
    challenge was maintainable, also sought to limit the
   scope of the circumstances in which such challenge
B could be made. However, before arriving at their final
   conclusion on the said point, the learned Judges also
    considered the provisions of Articles 19 to 22 relating to
    fundamental freedoms conferred on citizens and the
    proposition that the fundamental rights under Chapter Ill
C of the Constitution have to be read as a part of an
    integrated scheme. Their Lordships emphasized that they
    were not mutually exclusive, but operated, and were
    subject to each other. Their Lordships held that it was not
    enough that the detention order must satisfy the tests of
D all the said rights so far as they were applicable to
    individual cases. Their Lordships also emphasized in
    particular that it was well-settled that Article 22(5) is not
    the sole repository of the detenu's rights. His rights are
    also governed by the other fundamental rights,
E particularly those enshrined in Articles 14, 19 and 21 of
    the Constitution and the nature of constitutional rights
    thereunder. Their Lordships were of the view that read
    together the Articles indicate that the Constitution permits
  · both punitive and preventive detention, provided it is
F according to procedure established by law made for the
    purpose and if both the law and the procedure laid down
    by it are valid. It is in the aforesaid background that Their
    Lordships while examining the various decisions
    rendered on the subject, summed up the discussion in
G paragraph 30 of the judgment, wherein Their Lordships
    again reiterated that neither the Constitution, including
    the provisions of Article 22 thereof, nor the Act in
    question, places any restriction on the powers of the High
    Court and this Court to review judicially the order of
H detention. Their Lordships observed that the powers
  SUBHASH POPATLAL DAVE v. UNION OF INDIA                 67
                AND ANR.
under Article 226 and 32 are wide, and are untrammelled         A
by any external restrictions, and can reach any executive
action resulting in civil or criminal consequences.
 Howe· ·er, the said observations were, thereafter,
somewhat whittled down by the subsequent observation
that the Courts have over the years evolved certain self-       B
restraints in exercising these powers. Such self-imposed
 restraints were not confined to the review of the orders
 passed under detention law only, but they extended to
orders passed and decisions made under all laws. It was
also observed that in pursuance of such self-evolved            C
judicial policy and in conformity with the self-imposed
 internal restrictions that the Courts insist that the
aggrieved person should first allow the due operation and
implementation of the concerned law and exhaust the
 remedies provided by it before approaching the High            D
Court and this Court to invoke their discretionary,
extraordinary and equitable jurisdiction under Articles
226 and 32 respectively and that such jurisdiction by its
very nature has to be used sparingly and in
circumstances where no other efficacious remedy is              E
available. However, having held as above, Their
 Lordships also observed that all the self-imposed
restrictions in respect of detention orders would have to
be respected as it would otherwise frustrate the very
purpose for which such detention orders are passed for          F
a limited purpose. Consequently, inspite of upholding the
jurisdiction of the Court to interfere with such orders even
at the pre-execution stage, Their Lordships went on to
observe that the grounds on which the courts have
interfered with the detention orders "at the pre-execution      G
stage are necessarily very limited in scope and number,
viz., where the courts are prima facie satisfied (i) that the
impugned order is not passed unde·r the Act under which
it is purported to have been passed, (ii) that it is sought
to be executed against a wrong person, (iii) that it is         H
   68      SUPREME COURT REPORTS            [2012) 7 S.C.R.

A passed for a wrong purpose, (iv) that it is passed on
  vague, extraneous and irrelevant grounds or (v) that the
  authority which passed it had no authority to do so. The
  refusal by the courts to use their extraordinary powers
  of judicial review to interfere with the detention orders
B prior to their execution on any other ground does not
  amount to the abandonment of the said power or to their
  denial to the proposed detenu, but prevents their abuse
  and the perversion of the law in question." Nowhere was
  it indicated that challenge to the detention order at the
C pre-execution stage, can be made mainly on the
  aforesaid exceptions referred to hereinabove. By
  prefacing the five exceptions in which the Courts could
  interfere with an order of detention at the pre-execution
  stage, with the expression "viz", Their Lordships possibly
D never intended that the said five examples were to be
  exclusive. In common usage or parlance the expression
  "viz" means "in other words". There is no aura of finality
  attached to the said expression. The use of the
  expression suggests that the five examples were
E intended to be exemplar and not exclusive. On the other
  hand, the Hon'ble Judges clearly indicated that the
  refusal to interfere on any other ground did not amount
  to the abandonment of said power. This Court has not
  been able to read into the judgment in Alka Subhash
F Gadia's case any intention on the part of the Hon'ble
  Judges, who rendered the decision in that case, that
  challenge at the pre-execution stage would have to be
  confined to the five exceptions only and not in any other
  case. To accept that it was the intention of the Hon'ble
G Judges in Alka Subhash Gadia's case to confine the
  challenge to a detention at the pre-execution stage, only
  on the five exceptions mentioned therein, would amount
  to imposing restrictions on the powers of judicial review
  vested in the High Courts and the Supreme Court under
H Articles 226 and 32 of the Constitution. The exercise of
  SUBHASH POPATLAL DAVE v. UNION OF INDIA              69
                AND ANR.

powers vested in the superior Courts in judicially           A
reviewing executive decisions and orders cannot be
subjected to any restrictions by an order of the Court of
law. Such powers are untrammelled and vested in the
superior Courts to protect all citizens and even non-
citizens, under the Constitution, and may require further    B
examination. [Paras 24, 25, 26 and 28) [85-D-H; 86-A-B, E-
H; 87-A-H; 88-A-C, H; 89-A-D]

     1.3. In the circumstances, while rejecting the
contention regarding the right of a detenu to be provided c
with the grounds of detention prior to his arrest, this
Court is of the view that the right of a detenu to challenge
his detention at the pre-execution stage on grounds other
than those set out in paragraph 30 of the judgment in Alka
Subhash Gadia's case, requires further examination. D
There are various pronouncements of the law by this
Court, wherein detention orders have been struck down,
even without the apprehension of the detenu, on the
ground of absence of any live link between the incident
for which the detenu was being sought to be detained E
and the detention order and also on grounds of
staleness. These are issues which were not before the
Hon'ble Judges deciding Alka Subhash Gadia's case.
Law is never static but dynamic, and to hold otherwise,
would prevent the growth of law, especially in matters F
involving the right of freedom guaranteed to a citizen
under Article 19 of the Constitution, which is sought to
be taken away by orders of preventive detention, where
a citizen may be held and detained not to punish him for
any offence, but to prevent him from committing such G
offence. The most precious right of a citizen is his right
to freedom and if the same is .to be interfered with, albeit
in the public interest, such powers have to be exercised
with extra caution and not as an alternative to the
ordinary laws of the land. [Para 29) [89-E-H; 90-A-B]        H
    70       SUPREME COURT REPORTS                 [2012] 7 S.C.R.

A        Addi. Secretary, Govt. of India vs. Alka Subhash Gadia
    (1992) Supp. (1) sec 496: 1990 (3) Suppl. SCR 583 -
    explained.

      Deepak Bajaj vs. State of Maharashtra (2008) 16 SCC
8 14: 2008 (15) SCR 1062; Ramesh Thappar vs. State of
  Madras (1950) SCR 594; D.A. V. College vs. State of Punjab
  (1972) 2 SCC 269; Haradhan Saha vs. State of West Bengal
  (1975) 3 SCC 198: 1975 (1) SCR 778; Olga Tellis & Ors. vs.
  Bombay Municipal Corporation (1985) 3 SCC 545: 1985 (2)
c Suppl. SCR 51; K.K. Kochunni vs. State of Madras (1959)
  Supp. (2) SCR 316; Francis Coralie Mullin vs. W.C. Khambra
  (1980) 2 SCC 275: 1980 (2) SCR 1095; Rajinder Arora vs.
  Union of India (2006) 4 SCC 796: 2006 (3) SCR 9; Yumman
  Ongbi Lembi Leima vs. State of Manipur (2012) 2 SCC 176;
D Rekha vs. State of Tamil Nadu (2011) 5 SCC 244: 2011 (4)
  SCR 740; Sayed Taher Bawamiya vs. Joint Secretary,
  Government of India (2000) 8 SCC 630; Union of India vs.
  Atam Prakash & Anr. (2009) 1 SCC 585: 2008 (16) SCR 607;
  Alpesh Navinchandra Shah vs. State of Maharashtra (2007)
E 2 SCC 777: 2007 (3) SCR 223; State of Maharashtra vs.
  Bhaurao Punjabrao Gawande (2008) 3 SCC 613: 2008 (3)
  SCR 967; Naresh Kumar Goyal vs. Union of India (2005) 8
  SCC 276: 2005 (4) Suppl. SCR 17 and Union of India vs.
  Parasmal Rampuria (1998) 8 SCC 402 - referred to.
F                       Case Law Reference:

         1990 (3) Suppl. SCR 583 explained               Para 1

         2008 (15) SCR 1062       referred to            Para 3

G        (1950) SCR 594           referred to            Para 5

         (1972) 2 sec 269         referred to            Para 5

         1975 (1) SCR 778         referred to            Para 6

H        1985 (2) Suppl. SCR 51      referred to         Para 6
  SUBHASH POPATLAL DAVE v. UNION OF INDIA                     71
                AND ANR.
    (1959) Supp. (2) SCR 316 referred to             Para 6        A
    1980 (2) SCR 1095         referred to            Para 6
    2006 (3) SCR 9            referred to            Para 7
    (2012) 2 sec 176          referred to            Para 7
                                                                   B
    2011 (4) SCR 740          referred to            Para 8
    c2000)   s sec 630        referred to            Para 10
    2008 (16) SCR 607         referred to            Para 10
                                                                   c
    2007 (3) SCR 223          referred to            Para 12
    2008 (3) SCR 967          referred to            Para 12
    2011 (4) SCR 740          referred to            Para 12
    2005 (4) Suppl. SCR 17       referred to         Para 14       D

    (1998) 8 sec 402          referred to            Para 15
    CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
Nos. 137 of 2011 etc.
                                                                   E
    Under Article 32 of the Constitution of India.
                              WITH
W.P. (Crl.) Nos. "138, 35, 142, 220, 249 of2011, 11, 14 of2012
& SLP (Crl.) Nos. 1909, 1938 of 2011, 2442, 2091-2092 of           F
2012.

     P.P. Malhotra, ASG, Mukul Rohtagi, V.K. Bali, B.H.
Marlapalle, Sujay N. Kantawala, Saurabh Kirpal, Sanjay
Agarwal, Karan Bharioke, Rakesh Dahiya, G.K. Sarkar,
Malabika Sarkar, D. Mahesh Babu, Nikhil Jain, Ravindra             G
Keshavrao Adsure, Vikram Chaudhari, Gagandeep Sharma,
Preeti Singh, Rakesh Dahiya, Ranjana Narayan, P.K. Dey,
Chetan Chawla, Asha G. Nair, Arvind Kumar Sharma, B.
Krishna Prasad for the appearing parties.
                                                                   H
    72       SUPREME COURT REPORTS                 [2012] 7 S.C.R.

A        The Judgment of the Court was delivered by

       ALTAMAS KABIR, J. 1. These Special Leave Petitions
  and Writ Petitions are all directed against orders of preventive
  detention at the pre-execution stage. During the course of
  hearing, it was submitted on behalf of some of the Petitioners
8
  that the decision rendered in Addi. Secretary, Govt. of India
  vs. Alka Subhash Gadia [(1992) Supp. (1) SCC 496] that a
  preventive detention order could be challenged at the pre-
  execution stage on the five grounds enumerated in the
  judgment, was no longer good law on account of the subsequent
C enactment of the Right to Information Act, 2005, hereinafter
  referred to as the "R.T.I. Act", which came into force on 15th
  June, 2005. A connected question which was raised was
  whether the aforesaid decision in Alka Subhash Gadia's case
  (supra) was per incuriam, si~ce it did not have the occasion to
D notice subsequent decisions on the same question. Another
  question which was raised was whether the five instances
  indicated in Alka Subhash Gadia's case (supra), under which
  a detention order could be challenged at the pre-execution
  stage, was exhaustive or whether they were only illustrative.
E
       2. Since a decision on the points raised could effectively
  decide the matters without going into factual details, it was
  decided to decide the said questions as pre]iminary issues,
  before going into the matters on merit.
F
       3. Appearing on behalf of some of the Petitioners, Mr.
  Mukul Rohatgi, learned Senior Advocate, urged that the five
  exceptions laid down in Alka Subhash Gadia's case (supra)
  were not exhaustive, but only illustrative, as was held by this
G Court in Deepak Bajaj vs. State of Maharashtra [(2008) 16
  sec 14]. Mr. Rohatgi submitted that it was well settled that the
  power of judicial review vested in the High Courts under Article
  226 and in this Court under Article 32 of the Constitution, is part
  of the basic structure of the Constitution and it was
H inconceivable that such power of judicial review could be
   SUBHASH POPATLAL DAVE v. UNION OF INDIA                     73
         AND ANR. [ALTAMAS KABIR, J.]
restricted by amending the Constitution or by a judicial             A
pronouncement.

     4. Mr. Rohatgi contended that since Article 32 was
included in Part 111 of the Constitution and was in itself a
fundamental right, the exercise of jurisdiction thereunder by this   8
Court could not be affected and/or resfricted by the decision
rendered in Atka Subhash Gadia's case (supra). Learned
counsel urged that it was also inconceivable that by a judicial
pronouncement, the jurisdiction of this Court to interfere with
detention orders at a pre-execution stage only could be              C
restricted to the five exceptions mentioned in Atka Subhash
Gadia's case (supra) only, for all times to come.

      5. Tracing the history of the powers exercised by this Court
under Article 32 of the Constitution, Mr. Rohatgi firstly referred
to the decision rendered by this Court in the case of Romesh         D
Thappar vs State of Madras [(1950) SCR 594], wherein it was
observed that Article 32 provides a guaranteed remedy for the
enforcement of the rights under Part Ill of the Constitution and
this remedial right has itself been made a fundamental right by
being included in Part Ill. Mr. Rohatgi then referred to the         E
decision of this Court in D.A. V. College vs. State of Punjab
[(1972) 2 SCC 269], wherein in paragraph 44, this Court
observed that it was immaterial as to whether any fundamental
right has been threatened or violated. So long as a prima facie
case of such threat and violation was made out, a petition under     F
Article 32 has to be entertained.

     6. Various other judgments were also referred to by Mr.
Rohatgi, of which it will be worthwhile to refer to the decision
of this Court in Haradhan Saha vs. State of West Bengal
[(1975) 3 SCC 198], Olga Tellis & Ors. vs. Bombay Municipal          G
Corporation [(1985) 3 SCC 545] and K.K. Kochunni vs. State
of Madras [(1959) Supp. (2) SCR 316]. All these judgments
have held that judicial review of administrative action, even when
fundamental rights are threatened, is permitted on grounds of
relevance, reasonableness, necessity, delay, casualness and          H
    74        SUPREME COURT REPORTS                [2012] 7 S.C.R.

A for infringement of Articles 14, 19 and 21. In fact, it was in K.K.
  Kochunni's case (supra) that it was observed by the
  Constitution Bench that the right to enforce a fundamental right
  conferred by the Constitution was itself a fundamental right
  guaranteed by Article 32 of the Constitution and this Court could
B not refuse to entertain a petition under that Article simply
  because the Petitioner had/might have any other alternative
  legal remedy. The said position was further reiterated by
  another Constitution Bench in Haradhan Saha's case (supra),
  while dealing with a case involving preventive detention. It was
c observed that the essential concept of preventive detention is
  that the detention of a person is not to punish him for something
  he has done, but to prevent him from doing it again. It was also
  observed that there could be no parallel between prosecution
  in a Court of law and a detention order under the Act. While
  one is punitive, the other is preventive. Also referring to the
0
  decision of this Court in Francis Coralie Mullin vs. W. C.
  Khambra ((1980) 2 SCC 275], Mr. Rohatgi referred to the
  observations made in paragraph 5 of the judgment to the effect
  that the role of the Court in cases of preventive detention has
E to be one of eternal vigilance as no freedom is higher than
  personal freedom and no duty higher than to maintain it
  unimpaired. Furthermore, the Court's writ is the ultimate
  insurance against illegal detention and a detenu was, therefore,
  entitled to question the detention order even at the pre-
  execution stage, as was held in Alka Subhash Gadia's case
F (supra}, on grounds other than those set out therein.

       6. In support of his submission that circumstances had
  substantially changed on account of the advent of information
  technology, Mr. Rohatgi submitted that this Court had occasion
G to consider the challenge against orders of preventive detention
  on grounds outside those indicated in Alka Subhash Gadia's
  case (supra), wherein this Court had intervened and quashed
  the orders of detention on grounds, other than those indicated
  in Alka Subhash Gadia's case (supra).
H        7. In this connection, Mr. Rohatgi firstly referred to the
  SUBHASH POPATLAL DAVE v. UNION OF WDIA                        75
        AND ANR. [ALTAMAS KABIR; J.]
decision of this Court in Rajinder Arora vs. Union of India           A
[(2006) 4 SCC 796], wherein this Court had held that the delay
in passing of a detention order, without any explanation for such
delay, was sufficient ground to set aside the detention order
made under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974. Of course, it must      B
be said that while quashing the detention order, Their Lordships
related the facts of the said case with grounds 3 and 4 of the
decision in Atka Subhash Gadia's case (supra). Reference
was thereafter made by Mr. Rohatgi to a Three-Judge Bench
decision of this Court, in which two of us (Altamas Kabir and         c
J. Chelameswar, JJ) were parties, in the case of Yumman
Ongbi Lembi Leima vs. State of Manipur [(2012) 2 SCC 176],
in which the detention order was quashed, inter alia, on the
ground that there was no proximate and live link between the
activities of the detenu and the detention order. In the said         D
matter, facts relating to the arrest of the detenu and subsequent
release on bail more than 12 years before the offence in
respect of which detention orders had been passed, were held
to be irrelevant and/or improper for justification of an order of
detention. Mr. Rohatgi pointed out that it was also held therein      E
that mere apprehension that the detenu was likely to be
released on bail, whereafter he would indulge in further
prejudicial activities, was not sufficient to justify the detention
order in the absence of any other ground.

     8. The next decision referred to by Mr. Rohatgi was              F
delivered by a Bench of three Judges of this Court in Rekha
vs. State of Tamil Nadu [(2011) 5 SCC 244], wherein while
disagreeing with some of the observations made in Haradhan
Saha's case (supra), the Hon'ble Judges went on to hold that
though in Haradhan Saha's case it had been held that the              G
authorities could take recourse to both criminal proceedings
and also preventive detention, it did not mean that such would
be the law in all cases, even though in the view of the Court
the criminal proceedings were sufficient to deal with the
offences.                                                             H
    76       SUPREME COURT REPORTS                [2012] 7 S.C.R.


A       9. Having completed his submissions with regard to the
  exhaustive and/or illustrative nature of the five exceptions set
  out in Alka Subhash Gadia's case (supra), Mr. Rohatgi then
  turned his focus on the provisions of the R.T.I. Act under which,
  according to learned counsel, a detenu was entitled to receive
B a copy of the grounds of detention even though he had not been
  actually apprehended and detained pursuant to such detention
  order. Mr. Rohatgi submitted that in the cases of Choith
  Nanikram Harchandai and Suresh Hotwani, the grounds of
  detention had been provided to the detenu under the provisions
c of Section 3 of the aforesaid Act. Learned counsel submitted
  that the only prohibition to the grant of information has been set
  out in Section 8(h) and Section 24 of the said Act. Section 8(h)
  of the RT.I. Act prohibits the disclosure of information which
  could impede the process of investigation or the apprehension
0 and prosecution of offenders. Mr. Rohatgi submitted that it is
  obvious that the said provisions were confined to persons who
  are offenders and not detenus under a preventive de,tention law,
  who could not under the detention order be said to be an
  offender. Mr. Rohatgi urged that the only other restriction was
E under Section 24, wherein certain security and intelligence
  agencies of the Government have been exempted from the
  provisions of the Act. Learned counsel urged that under the first
  proviso to Section 24, information relating to human rights
  cannot be denied to the person seeking information since
  human rights had been defined in Section 2(e) of the Protection
F of Human Rights Act as being rights relating to life, liberty,
  equality and dignity, guaranteed by the Constitution. Mr. Rohatgi
  contended that the illegal detention would also amount to
  violation of human rights.

G     10. Mr. Rohatgi submitted that the Right to Information Act
  was not in existence, when decisions were rendered by this
  Court in Alka Subhash Gadia's case (supra) as also in the
  case of Sayed Taher Bawamiya vs. Joint Secretary,
  Government of India [(2000) 8 sec 630] and in the case of
H Union of India vs. Atam Prakash & Anr. [2009) 1 SCC 585],
   SUBHASH POPATLAL DAVE v. UNION OF INDIA                    77
         AND ANR. [ALTAMAS KABIR, J.]
in which it was held that the grounds of challenge to a detention   A
order at the pre-execution stage could only be confined to the
five exceptions set out in Atka Subhash Gadia's case (supra).

      11. Mr. Rohatgi submitted that having regard to the various
circumstances which this Court had no occasion to consider 8
in Atka Subhash Gadia's case (supra), it cannot be accepted
that the challenge to preventive detention order at the pre-
execution stage could not be made on any other ground other
than the five exceptions mentioned in Atka Subhash Gadia's
case (supra). Mr. Rohatgi urged that besides the above, the
right of a detenu to information relating to the grounds of C
detention under Section 3 of the Right to Information Act, 2005,
was also a circumstance which could not be taken into
consideration by the Hon'ble Judges while deciding Atka
Subhash Gadia's case (supra). Accordingly, in the changed
circumstances, it cannot be held that apart from the five D
exceptions mentioned in Atka Subhash Gadia's case (supra),
a detenu could not be denied the grounds of detention on the
basis of which he was to be detained at the pre-execution
stage.
                                                                  E
      12. In addition to the submissions made by Mr. Rohatgi,
submissions were also advanced by Mr. Ravindra Keshavrao
Adsure, Advocate, appearing for some of the Petitioners in
these matters. In fact, Mr. Adsure is appearing in the lead
matter, namely, Writ Petition (Crl.) No.137 of 2011, filed by F
Subhash Popatlal Dave, in which the detention order made
against one Haresh Kalyandas Bhavsar on 18th August, 1997,
was challenged. Mr. Adsure attempted to convince this Court
that the decisions cited in Atka Subhash Gadia's case (supra)
and Sayed Taher Bawamiya's case (supra), were per incuriam, G
since the Hon'ble Judges did not have the opportunity to
consider the effects of the enactment of the Right to Information
Act in 2005. Mr. Adsure made special mention of the Writ
Petitions filed by Choith Nanikram Harchandai (Writ Petition
(Crl) No.88 of 2010) and Suresh Hotwani & Anr. (Writ Petition H
    78        SUPREME COURT REPORTS                [2012] 7 S.C.R.


A   (Crl) No.35 of 2011), wherein the detention orders and grounds
    had been provided under the R.T.I. Act, 2005, before the same
    were executed. Following the same line of arguments advanced
    by Mr. Rohatgi, Mr. Adsure also laid stress on the observations
    made in Alka Subhash Gadia's case (supra) (paragraph 12)
B   where other than the five exceptions ultimately culled out in
    paragraph 30 of the judgment, various other situations
    entertaining a petition for quashing of detention order have also
    been indicated. Mr. Adsure also referred to the decisions of
    this Court in (i) Alpesh Navinchandra Shah vs. State of
C   Maharashtra [(2007) 2 SCC 777]; (ii) State of Maharashtra vs.
    Bhaurao Punjabrao Gawande [(2008) 3 SCC 613]; and (iii)
    Rekha vs. State of Tamil Nadu [(2011) 5 SCC 244], wherein
    the detention orders were set aside on the ground that the
    purpose for issuance of a detention order is to prevent the
    detenu from continuing his prejudicial activities for a period of
0
    one year, but not to punish him for something done in the
    remote past. Mr. Adsure contended that the very concept of
    preventive detention is to prevent a person from indulging in
    activities which were prejudicial to the State and society.
    However, there would have to be a nexus between the detention
E   order and the alleged offence in respect whereof he was to be
    detained and in the absence of a live link between the two, the
    detention order could not be defended.

          13. On the same lines, Mr. Adsure referred to the decision
F   in Rekha's case (supra), wherein this Court had held that when
    the ordinary criminal law of the land is able to deal with a
    situation, then recourse to preventive detention law will be
    illegal. Mr. Adsure urged that the orders of detention which
    violated the aforesaid principles could not, therefore, be
G   sustained and could also be challenged at the pre-execution
    stage.

         14. Appearing on behalf of the Union of India, learned
    Additional Solicitor General, Mr. P.P. Malhotra, contended in
H   response to the first point raised, that the grounds for
  SUBHASH POPATLAL DAVE v. UNION OF INDIA                    79
        AND ANR. [ALTAMAS KABIR, J.]

intervention at the pre-detention stage, as indicated in Alka A
Subhash Gadia's case (supra), are exhaustive and not
illustrative, and had been so held in subsequent decisions of
this Court, and in particular, the decision of a Three-Judge
Bench in the case of Sayed Taher Bawamiya (supra). The
learned ASG contended that in the said case it had also been B
sought to be argued that the exceptions in Alka Subhash
Gadia's case (supra) were not exhaustive, but merely illustrative,
but the Three-Judge Bench had rejected such contention upon
holding that in Alka Subhash Gadia's case (supra), it is only
in the five types of instances indicated, that the Courts may c
exercise its discretion and jurisdiction under Article 226 and
32 of the Constitution at the pre-execution stage. The learned
ASG laid stress on the observations made in paragraph 7 of
the judgment wherein the learned Judges had observed that in
Alka Subhash Gadia's case (supra) it was only in the five types D
of instances that the Courts could exercise its discretion and
jurisdiction at the pre-execution stage. Reference was also
made to another Three-Judge Bench decision of this Court in
Naresh Kumar Goyal vs. Union of India [(2005) 8 SCC 276],
wherein it was, inter alia, observed that the refusal by the Courts E
to use their extraordinary powers of judicial review to interfere
with the detention orders prior to their execution on any other
ground, does not amount to the abandonment of the said power
or to their denial to the proposed detenu, but prevents their
abuse and the perversion of the law in question.
                                                                   F
     15. The learned ASG also referred to the decision of this
Court in Union of India vs. Parasmal Rampuria [(1998) 8 SCC
402], wherein this Court directed the detenu to surrender and
thereafter to make a representation challenging the detention
order, which could be examined on merits. The entire focus of G
the submissions made by the learned ASG was centered
around the decision in Sayed Taher Bawamiya's case (supra)
and he tried to make a distinction between the same and the
decision in Deepak Bajaj's case (supra), which the learned
ASG pointed out, was a decision of two Judges of this Court. H
    80        SUPREME COURT REPORTS                [2012] 7 S.C.R.

A   Even with regard to the decision in Rajinder Arora's case
    (supra), the learned ASG pointed out that the decision was
    based on ground nos.3 and 4 of the decision in Alka Subhash
    Gadia's case (supra).

          16. As to the decision in Rekha's case (supra), the learned
8
    ASG pointed out that this was not a case of pre-detention! but
    a criminal appeal in which the orders of detention had been
    challenged. The learned ASG submitted that since the
    challenge was not at the pre-execution stage, the judgment in
    Rekha's case was not relevant in deciding the issue involved
C   in this case.

          17. As to the other decisions cited on behalf of the
    Petitioners, such as in Romesh Thappar's case (supra) and
    in K.K. Kochunni's case (supra), the learned ASG submitted
D   that the said decisions relate to the width and scope of Articles
    19 and 21 of the Constitution and there was no challenge
    therein that the decision in Alka Subhash Gadia's case (supra)
    was erroneous.

E       18. On the second point relating to applicability of the RT.I.
  Act, 2005, the learned ASG submitted that while the Preamble
  to the Act stipulates that it had been passed to promote
  transparency and accountability in the working of every public
  authority, certain restrictions had been imposed on divulging
  certain information as indicated in Section 8 of the Act.
F Referring to clause (a) of Section 8 of the aforesaid Act, the
  learned ASG submitted that it had been stipulated that
  notwithstanding anything contained in the Act, there would be
  no obligation to any citizen to give information, disclosure of
  which would prejudicially affect the economic interest of the
G State, relations with foreign States or such information which
  would impede the process of investigation or the apprehension
  or prosecution of offenders. The learned ASG also pointed out
  that there was no obligation to provide information which relates
  to personal information, the disclosure of which has no
H relationship to any public activity or interest. While referring to
   SUBHASH POPATLAL DAVE v. UNION OF INDIA                     81
         AND ANR. [ALTAMAS KABIR, J.]
Section 24 of the Act, the learned ASG submitted that it             A
guaranteed exemption to the agencies mentioned in the 2nd
Schedule and the Central Economic Intelligence Bureau was
one of them. Therefore, if a proposed detenu or his
representative made an application for disclosure of grounds
of detention, he would not be entitled to the same on the            B
aforesaid grounds.

      19. The learned ASG submitted that the decision rendered
 by the Bombay High Court in dismissing the Writ Petitions filed
 by Suresh Hotwani and Nitesh Ashok Sadarangani did not              C
 require any interference by this Court. The learned ASG lastly
 submitted that the provisions in the Constitution for detention
 are provided in Article 22 which sets out the provisions
 regarding protection against arrest and detention in certain
 cases. The learned ASG laid special stress on clause (b) of
 sub-clause (3), which indicates that nothing in clauses (1) and     D
 (2) would apply to any person who is arrested or detained under
 any law providing for preventive detention. Regarding sub-
clause (5) of the aforesaid Article, the learned ASG submitted
 that when any person is detained in pursuance of an order
 made under any law providing for preventive detention, the          E
authority making the order is under an obligation to
communicate to such person the grounds on which the order
has been made, as quickly as possible, in order to afford him
the earliest opportunity of making a representation against such
order. The learned ASG submitted that detention or arrest was        F
a pre-condition for service of the grounds of detention and it is
only after such detention or arrest that a detenu could ask for a
copy of the grounds of detention. The learned ASG submitted
that the constitutional provisions would have an overriding effect
over the Right to Information Act, and, accordingly, the             G
submissions made both by Mr. Rohtagi and Mr. Adsure with
regard to the right of a detenu to ask for grounds of detention
under the RT.I. Act was without any substance and was liable
to be rejected. The learned ASG submitted that both the
grounds raised on behalf of the Petitioners, as preliminary          H
    82       SUPREME COURT REPORTS                [2012) 7 S.C.R.


A   grounds, were not valid and were liable to be rejected.

       20. On the other question as to whether the R.T.I. Act
  applies in cases of preventive detention, we are unable to
  accept the submissions made by Mr. Rohatgi. Article 22 of the
  Constitution provides for protection against arrest and detention
8
  in certain cases. Clauses (1) and (2) of Article 22 set out the
  manner in which a person arrested is to be dealt with and
  clause (1) makes it clear that no person who is arrested is to
  be detained in custody without being informed, as soon as may
C be, of the grounds for such arrest. Clause (2) provides that such
  a person who is arrested and detained in custody has to be
  produced before a Magistrate within a period of 24 hours of
  such arrest. However, an exception is made by clause (3),
  which provides that nothing in clauses (1) and (2) shall apply,
  amongst others, to any person who is arrested or detained
D under any law providing for preventive detention. Clause (4)
  thereafter sets out that no law providing for preventive detention
  shall authorize such detention for more than three months
  without following the procedure subsequently set out. What is
  relevant for our consideration while deciding the above
E mentioned question is clause (5) of Article 22 which is extracted
   hereinbelow :-

         "(5). When any person is detained in pursuance of an order
         made under any law providing for preventive detention, the
F        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."

       21. It may immediately be noticed from the opening words
G of clause (5) that the grounds on which the person is detained
  is to be communicated to him when the person has actually
  been detained. (emphasis supplied) If one were to read
  clauses (1) to (6) of Article 22 as a whole, it is more than
  obvious that the scheme envisaged therein provides for the
H protection of a person arrested in connection with an offence
  SUBHASH POPATLAL DAVE v. UNION OF INDIA                     83
        AND ANR. [ALTAMAS KABIR, J.]
by providing for his production before the Magistrate within 24     A
hours of his arrest and also to avail the services of a lawyer,
but an exception has been carved out in relation to detention
effected under preventive detention laws. A detenu is not
required to be treated in the same manner as a person arrested
in connection with the commission of an alleged offence. On         B
the other hand, preventive detention laws provide for the
detention of a person with the intention of preventing him from
committing similar offences in the future, at least for a period
of one year. Section 3 of the R.T.I. Act, 2005, provides that
subject to the provisions of the Act, all citizens would have the   c
right to information. Section 8, however, makes, an exemption
from disclosure of information. While setting out the instances
in which there would be no obligation 'to give any citizen
information in the situations enumerated in Sub-Section (1 ),
Sub-Section (2) provides that notwithstanding anything in the       D
Official Secrets Act, 1923, nor any of the exemptions
permissible in accordance with Sub-Section (1 ), a public
authority may allow access to information, if public interest in
disclosure outweighs the harm to the protected interests. There
are two instances, which one can think of among the
exemptions identified in Sub-Section (1 ), of which one is the      E
exemption indicated in clause (a) of Sub-Section (1), which
reads as follows :-

     "8(1). Notwithstanding anything contained in this Act, there
     shall be no obligation to give any citizen,-                   F

      (a)   information, disclosure of which would prejudicislly
            affect the sovereignty and integrity of India, the
            security, strategic, scientific or economic interests
            of the State, relation with foreign State or lead to    G
            incitement of an offence;

      (b)   to (i) xxx      xxx              xxx

      0)    information which relates to personal information
            the disclosure of which has no relationship to any      H
    84        SUPREME COURT REPORTS                 [2012] 7 S.C.R.

A               public activity or interest, or which would cause
                unwarranted invasion of the privacy of the individual,
                unless the Central Public Information Officer or the
                State Public Information Officer or the appellate
                authority, as the case may be, is satisfied that the
e               larger public interest justifies the disclosure of such
                information:

              Provided that the information which cannot be
         denied to the Parliament or a State Legislature shall not
         be denied to any person."
c
         22. Even under Sub-Section (1) of Section 8 of the above
    Act, the legislature made an exception to the disclosure of
    information which could be contrary to the interests of the
    nation, subject to the provision that such information may also
D   be allowed to be accessed in the public interest, which
    overweighed the personal interests of the citizen. Not much
    discourse is required with regard to the primacy of the
    provisions of the Constitution, vis-a-vis the enactments of the
    legislature. It is also not necessary to emphasise the fact that
E   the provisions of the Constitution will prevail over any enactment
    of the legislature, which itself is a creature of the Constitution.
    Since clause (5) of Article 22 provides that the grounds for
    detention are to be served on a detenu after his detention, the
    provisions of Section 3 of the R.T.I. Act, 2005, cannot be
F   applied to cases relating to preventive detention at the pre-
    execution stage. In other words, Section 3 of the R.T.I. Act has
    to give way to the provisions of Clause (5) of Article 22 of the
    Constitution. Even the provisions relating to production of an
    arrested or detained person, contained in clauses (1) and (2)
G   of Article 22 of the Constitution, have in their application been
    excluded in respect of a person detained under any preventive
    detention law.

      23. We, therefore, agree with the learned ASG, Mr. P.P.
  Malhotra, that notwithstanding the provisions of the RT.I. Act,
H 2005, the State is not under any obligation to provide the
   SUBHASH POPATLAL DAVE v. UNION OF INDIA                     85
        AND ANR. [ALTAMAS KABIR, J.]
grounds of detention to a detenu prior to his arrest and             A
detention, notwithstanding the fact that in the cases of Choith
Nanikram Harchandai and Suresh Hotwani & Anr., referred to
hereinabove, the grounds of detention had been provided to
the detenu under the R.T.I. Act, 2005, at the pre-execution
stage. The procedure followed under the R.T.I. Act, in respect       B
of the said writ petitions cannot and should not be treated as a
precedent in regard to Mr. Rohatgi's contention that under the
R.T.I. Act, 2005, a detenu was entitled, in assertion of his human
rights, to receive the grounds under which he was to be
detained, even before his detention, at the pre-execution stage.     C

      24. As to the second point urged by Mr. Rohtagi as to
whether the five exceptions mentioned in Alka Subhash
Gadia's case (supra) regarding the right to challenge an order
of detention at the pre-execution stage, were exhaustive or not,
we are of the view that the matter requires consideration. The       D
decision in Alka Subhash Gadia's case (supra), appears to
suggest several things at the same time. The Three-Judge
Bench, while considering the challenge to the detention order
passed against the detenu, at the pre-execution stage, and
upholding the contention that such challenge was maintainable,       E
also sought to limit the scope of the circumstances in which
such challenge could be made. However, before arriving at their
final conclusion on the said point, the learned Judges also
considered the provisions of Articles 19 to 22 relating to
fundamental freedoms conferred on citizens and the proposition       F
that the fundamental rights under Chapter Ill of the Constitution
have to be read as a part of an integrated scheme. Their
Lordships emphasized that they were not mutually exclusive, but
operated, and were subject to each other. Their Lordships held
that it was not enough that the detention order must satisfy the     G
tests of all the said rights so far as they were applicable to
individual cases. Their Lordships also emphasized in particular
that it was well-settled that Article 22(5) is not the sole
repository of the detenu's rights. His rights are also governed
by the other fundamental rights, particularly those enshrined in
                                                                     H
    86        SUPREME COURT REPORTS                [2012) 7 S.C.R.

A Articles 14, 19 and 21 of the Constitution and the nature of
  constitutional rights thereunder. Their Lordships were of the
  view that read together the Articles indicate that the Constitution
  permits both punitive and preventive detention, provided it is
  according to procedure established by law made for the
  purpose and if both the law and the procedure laid down by it
8
  are valid. Going on to consider the various decisions rendered
  by this Court in this regard, Their Lordships in paragraph 5
  observed as follows :-

         "5. The neat question of law that falls for consideration is
c        whether the detenu or anyone on his behalf is entitled to
         challenge the detention order without the detenu submitting
         or surrendering to it. As a corollary to this question, the
         incidental question that has to be answered is whether the
         detenu or the petitioner on his behalf, as the case may be,
D        is entitled to the detention order and the grounds on which
         the detention order is made before the detenu submits to
         the order."

        25. It is in the aforesaid background that Their Lordships
E while examining the various decisions rendered on the subject,
  summed up the discussion in paragraph 30 of the judgment,
  wherein Their Lordships again reiterated that neither the
  Constitution, including the provisions of Article 22 thereof, nor
  the Act in question, places any restriction on the powers of the
F High Court and this Court to review judicially the order of
  detention. Their Lordships observed that the powers under
  Article 226 and 32 are wide, and are untrammelled by any
  external restrictions, and can reach any executive action
  resulting in civil or criminal consequences. However, the said
G observations were, thereafter, somewhat whittled down by the
  subsequent observation that the Courts have over the years
  evolved certain self-restraints in exercising these powers. Such
  self-imposed restraints were not confined to the review of the
  orders passed under detention law only, but they extended to
  orders passed and decisions made under all laws. It was also
H
  SUBHASH POPATLAL DAVE v. UNION OF INDIA                      87
        AND ANR. [ALTAMAS KABIR, J.]
observed that in pursuance of such self-evolved judicial policy      A
and in conformity with the self-imposed internal restrictions that
the Courts insist that the aggrieved person should first allow
the due operation and implementation of the concerned law
and exhaust the remedies provided by it before approaching
the High Court and this Court to invoke their discretionary,         B
extraordinary and equitable jurisdiction under Articles 226 and
32 respectively and that such jurisdiction by its very nature has
to be used sparingly and in circumstances where no other
efficacious remedy is available. However, having held as
above, Their Lordships also observed that all the self-imposed       c
restrictions in respect of detention orders would have to be
respected as it would otherwise frustrate the very purpose for
which such detention orders are passed for a limited purpose.
Consequently, inspite of upholding the jurisdiction of the Court
to interfere with such orders even at the pre-execution stage,       D
Their Lordships went on to observe as follows :-

    'The courts have the necessary power and they have used
     it in proper cases as has been pointed out above, although
    such cases have been few and the grounds on which the
    courts have interfered with them at the pre-execution stage      E
    are necessarily very limited in scope and number, viz.,
    where the courts are prima facie satisfied (i) that the
     impugned order is not passed under the Act under which
     it is purported to have been passed, (ii) that it is sought
    to be executed against a wrong person, (iii) that it is          F
    passed for a wrong purpose, (iv) that it is passed on
    vague, extraneous and irrelevant grounds or (v) that the
    authority which passed it had no authority to do so. The
    refusal by the courts to use their extraordinary powers of
    judicial review to interfere with the detention orders prior     G
    to their execution on any other ground does not amount
    to the abandonment of the said power or to their denial to
    the proposed detenu, but prevents their abuse and the
    perversion of the law in question."

    26. Nowhere has it been indicated that challenge to the          H
    88       SUPREME COURT REPORTS                [2012] 7 S.C.R.

A detention order at the pre-execution stage, can be made mainly
  on the aforesaid exceptions referred to hereinabove. By
  prefacing the five exceptions in which the Courts could interfere
  with an order of detention at the pre-execution stage, with the
  expression "viz", Their Lordships possibly never intended that
B the said five examples were to be exclusive. In common usage
  or parlance the expression "viz" means "in other words". There
  is no aura of finality attached to the said expression. The use
  of the expression suggests that the five examples were
  intended to be exemplar and not exclusive. On the other hand,
c the Hon'ble Judges clearly indicated that the refusal to interfere
  on any other ground did not amount to the abandonment of said
  power. It is only in Sayed Taher Bawamiya's case (supra) that
  another Three- Judge Bench considered tile ratio of the
  decision of this Court in Atka Subhash Gadia's case (supra)
                                                         •
  and observed that the Courts have the power in appropriate
0
  cases to interfere with the detention orders at the pre-execution
  stage, but that the scope of interference was very limited. It was
  in such context that the Hon'ble Judges observed that while the
  detention orders could be challenged at the pre-execution
  stage, that such challenge could be made only after being
E prima facie satisfied that the five exceptions indicated in Atka
  Subhash Gadia's case (supra) had been fulfilled.

       27. Their Lordships in paragraph 7 of the judgment held
  that the case before them did not fall under any of the five
F exceptions to enable the Court to interfere. Their Lordships also
  rejected the contention that the exceptions were not exhaustive
  and that the decision in Atka Subhash Gadia's case (supra)
  indicated that it is only in the five types of instances indicated
  in the judgment in Atka Subhash Gadia's case (supra) that the
G Courts may exercise its discretionary jurisdiction under Articles
  226 and 32 of the Constitution at the pre-execution stage.
      28. With rlue respect to the Hon'ble Judges, we have not
  been able to read into the judgment in Atka Subhash Gadia's
H case (~_upra) any intention on the part of the Hon'ble Judges,
  SUBHASH POPATLAL DAVE v. UNION OF INDIA                    89
        AND ANR. [ALTAMAS KABIR, J.]

who rendered the decision in that case, that challenge at the       A
pre-execution stage would have to be confined to the five
exceptions only and not in any other case. Both the State and
the Hon'ble Judges relied on the decision in Sayed Taher
Bawamiya's case (supra). As submitted by Mr. Rohatgi, to
accept that it was the intention of the Hon'ble Judges in Alka      B
Subhash Gadia's case (supra) to confine the challenge to a
detention at the pre-execution stage, only on the five exceptions
mentioned therein, would amount to imposing restrictions on
the powers of judicial review vested in the High Courts and the
Supreme Court under Articles 226 and 32 of the Constitution.        c
The exercise of powers vested in the superior Courts in
judicially reviewing executive decisions and orders cannot be
subjected to any restrictions by an order of the Court of law.
Such powers are untrammelled and vested in the superior
Courts to protect all citizens and even non-citizens, under the
                                                                    D
Constitution, and may require further examination.

      29. In such circumstances, while rejecting Mr. Rohatgi's
contention regarding the right of a detenu to be provided with
the grounds of detention prior to his arrest, we are of the view
that the right of a detenu to challenge his detention at the pre-   E
execution stage on grounds other than those set out in
paragraph 30 of the judgment in Alka Subhash Gadia's case
(supra), requires further examination. There are various
pronouncements of the law by this Court, wherein detention
orders have been struck down, even without the apprehension         F
of the detenu, on the ground of absence of any live link between
the incident for which the detenu was being sought to be
detained and the detention order and also on grounds of
staleness. These are issues which were not before the Hon'ble
Judges deciding Alka Subhash Gadia's case (supra). Law is           G
never static but dynamic, and to hold otherwise, would prevent
the. growth of law, especially in matters involving the right of
freedom guaranteed to a citizen under Article 19 of the
Constitution, which is sought to be taken away by orders of
preventive detention, where a citizen may be held and detained      H
    90        SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A   not to punish him for any offence, but to prevent him from
    committing such offence. As we have often repeated, th'e most
    precious right of a citizen is his right to freedom and if the same
    is to be interfered with, albeit in the public interest, such powers
    have to be exercised with extra caution and not as an
8   alternative to the ordinary laws of the land.

          30. In the light of the above, let the various Special Leave
    Petitions and the Writ Petitions be listed for final hearing and
    disposal on 7th August, 2012 at 3.00 p.m. This Bench be
    reconstituted on the said date, for the aforesaid purpose.
c
    8.8.B.                                          Matter adjourned.