The Madhya Pradesh High Court has set aside a detention order as the same did not mention the detenu’s right to make a representation before the detaining authority. This decision by the Division bench of Justices Sujoy Paul and Anil Verma relied upon a former judgement of the high court.
The petitioner contended that in the detention order passed by the Magistrate, it was not mentioned that the detenue Narendra Thakur can prefer representation against the detention order before the Magistrate thus violating his rights under Article 22 (5) of the Constitution.
Article 22 (5) states as follows:
(5) When any person is 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
Recent judgement passed by the high court in Gurubachan Singh Saluja v/s The State of Madhya Pradesh & Others (W.P. No.9630/2021) was cited which had held that the detention order stands vitiated because of the infringement of such right.
In Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51, the Constitution Bench of the Supreme Court had emphasised upon what would the effect of not informing the detenu that he has a right of making representation, apart from the State Government and the Central Government, also to the detaining authority itself. The court held thus, “Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.”
In Gurubachan Singh case, the high court held that the detention order and disclosure that detenu could make representation to the detaining Authority abridged the right of detenu under Article 22(5) of the Constitution. As a result, the continued detention of the detenu on the basis of such infirm order cannot be countenanced.
The court completely relied upon these judgements and thus set aside the detention order on the ground that the fundamental right of the detenu was infringed as it was not communicated to him in the detention order that he can make a representation before the District Magistrate which was the Detaining Authority.
Laws that provide for preventive detention are all stringent, and impose several restrictions on the life and liberty of the detenu hence courts are particularly cognisant of impingement of the limited rights available to the detenu in such cases. Even a technical aspect like failure to mention the right to put forth ones representation which may seem like a minor aspect leads to the order getting vitiated as the same affects the fundamental right of the detainee which cannot be compromised at any cost by the courts.
The complete order may be read here:
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