A three judge bench of the Supreme Court comprising of Justices B.R. Gavai, Prashant Kumar Mishra, and K.V. Vishwanthan, on September 12, quashed a preventive detention order on grounds of procedural lapses —one, by not serving one of the statements relied upon for continuing the detention to the detenu and two, on the delay caused by jail authorities regarding the representation of the detenu against his detention not being sent to the Central Government/Detaining Authority-thus violating Article 22(5) of the Constitution.
Article 22(5) of the Constitution states as follows:
“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.”
Article 22 of the Constitution also states that no law providing for preventive detention shall authorise the detention of a person for a longer period than 3 months unless an advisory board consisting of person who are or have been qualified to be appointed as judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.
State and preventive detention
As the institution of the state grows more powerful, it often manages to impose its will, sometimes at the expense of citizens’ basic freedoms. This is evident when individuals are denied bail and kept in jail for years, as seen in the case of Umar Khalid, who remains imprisoned without trial under various statutes.
Given these circumstances, it becomes crucial to recognize, document, and understand the procedural responsibilities of the state, particularly in relation to personal freedoms. In this context, the Supreme Court’s judgement in Jasheela Shaji vs. Union of India [2024 INSC 683] becomes especially important to examine.
Background of the case
The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974(COFEPOSA) provides for preventive detention in certain cases for the purpose of conservation and augmentation of Foreign Exchange and Prevention of smuggling activities and such connected matters.
Section 3(1) of the Act gives powers to the Central Government or the State government to empower an officer not below the rank of secretary to make an order for a person, including a foreigner, be detained with a view to prevent such person from smuggling or abetting the smuggling of goods, engaging or transporting or concealing or keeping smuggled goods, or dealing in smuggled goods in other ways or harbouring people engaged in smuggling goods.
Pursuant to this power, the Detaining Authority had passed an order on August 31, 2023 to detain Appisserlil Kochu Mohammed Shaji (A.K.Shaji-the detenu) with a view to prevent him from acting in any manner prejudicial to the augmentation of foreign exchange in future.
After being taken into custody on September 2, 2023, the Detenu was sent to the Central Prison, Poojapura, Trivandrum. On September 6, the grounds of detention were served against the detenu. Apart from the detenu’s statements, WhatsApp Chats, Voice Calls, Images revered from his Mobile etc, the detaining authority had relied on the statements of two people — Suresh Babu and Ms. Preetha Pradeep.
According to the Constitutional right under Article 22(5), the detenu had made representations to all three – the detaining authority, the Central Government and the Advisory Board. Since the central government or the detaining authority did not receive the representation, the former confirmed the August 31 detention order and directed that the detenu be detained for a period of one year from September 2, 2023.
When the detenu approached the Kerala High Court under a Habeas Corpus petition, the Court on March 4, 2024, dismissed the petition leading to the appeal at the Supreme Court.
Arguments
Appellant’s arguments:
- The appellants counsel argued that the detention order clearly mentions that the statements of Ms. Preetha Pradeep were relied upon by the detaining authority while arriving at subjective satisfaction to pass the detaining order on August 31, 2023. The said statements were not provided to the detenu, thus affecting the right under Article 22(5) of the Constitution. Counsel also submitted that the High Court had erred in deciding that the detaining authority could have arrived at the same decision without relying on Ms. Preetha Pradeep’s statements and thus, the detaining order is liable to be set aside.
- The Detenu submitted the representation to the Jail Authorities on September 27, 2023, for onward transmission to the detaining authority and the central government—which were sent by ordinary post and could not be traced. After the notice was issued in the present case, records were called from the jail authorities and the representations were subsequently rejected by both the authorities on June 11 and 12, 2024. The counsel for the appellant submitted that the delay in transmitting the representations as well as the delay caused in deciding the representations would also adversely affect the right of the detenu for effective and speedy disposal of the representations.
- Another submission was that the memorandum passed by the Central Government rejecting the representation of detenu shows that there was no real and proper consideration in lieu of absence of reasons.
- On these counts, the counsel for the appellant had argued that the detention order be quashed and set aside.
Respondents’ arguments
- The counsel for the respondent argued that the Detaining Authority had correctly determined the detenu’s involvement in illegal foreign currency transactions based on the statement of Suresh Babu and WhatsApp messages. These materials demonstrated, according to the respondents’ arguments, the detenu’s engagement in hawala dealings, and the illegal purchase and sale of foreign currencies.
- The counsel stated that the detenu’s case was referred to the State Advisory Board, which found sufficient grounds for detention, even if the statement of Ms. Preethi Pradeep was excluded. They relied on the case of Vakil Singh vs. The State of J&K [(1975) 3 SCC 545] to argue that “the grounds must contain the pith and substance of primary facts but not subsidiary facts or evidential details.” The case of Sowkath Ali vs. Union of India [(2000) 7 SCC 148] was also cited to maintain that if one ground for detention is unsustainable, the order can still be upheld based on other valid grounds.
- Regarding the supply of documents, the counsel cited the case of M.S. Ummu Saleema vs. B.B. Gujara [(1981) 3 SCC 317], asserting that it is not necessary to furnish a copy of each and every document to which casual or passing reference may be made during the narration of facts, especially if those documents were not relied upon by the Detaining Authority when making the detention order. On the issue of delay in deciding the detenu’s representations, the counsel argued that the representations dated September 27, 2023 were not received by the Detaining Authority or the Central Government. However, following a court notice, the representations were decided in June 2024, and they maintained this did not constitute a delay.
The judgement:
The court addressed two key issues regarding the detenu’s right under Article 22(5) of the Constitution of India: (a) the impact of non-supply of Ms. Preetha Pradeep’s statement on the detenu’s ability to make an effective representation, and (b) the non-receipt and delay in deciding the detenu’s representation by the Detaining Authority and Central Government.
On the issue of not serving statements of Ms. Preetha Pradeep.
On the first issue, the court referred to previous judgments, highlighting that under Article 22(5), the detenu must be provided with the grounds of detention and any documents relied on by the Detaining Authority as soon as practicable. The right to make an effective representation would be compromised if such documents were not provided. It was emphasized that even if the detenu was already aware of the document’s contents, the failure to supply them would still violate their rights. The court cited the case of M. Ahamedkutty vs. Union of India [(1990) 2 SCC 1], affirming that documents forming the basis of detention must be given to the detenu, without which their representation would be incomplete.
The court also acknowledged the reliance on the case of L.M.S. Ummu Saleema vs. B.B. Gujaral [(1981) 3 SCC 317], which held that it is not necessary to supply documents casually referenced in the detention grounds if they are not relied upon by the Detaining Authority. However, the failure to supply crucial documents relied on for the detention decision would violate the detenu’s rights. The court reiterated that only those documents instrumental in the detention order must be provided, as noted in the case of Radhakrishnan Prabhakaran vs State of Tamil Nadu [(2000) 9 SCC 170]. This distinction was crucial in affirming that selective non-disclosure can affect the detenu’s constitutional rights.
The court examined the detention order which was based on eight key factual aspects, leading the authority to the conclusion- that the detenu had engaged in activities harming the country’s foreign exchange. Two significant statements by Ms. Preetha Pradeep, made on 5th and 6th July 2023, were central to the case. In her statements, she revealed transactions involving large sums of money being transferred to and from Suresh Forex Services Pvt. Ltd., with Shaji and Suresh Babu involved. These statements were crucial in establishing the link between the detenu and these transactions.
The court noted that these statements were not just casual references but were pivotal in forming the Detaining Authority’s “subjective satisfaction” about the detenu’s involvement in illegal activities. In addition to Preetha’s statements, other pieces of evidence, including statements from Suresh Babu and the detenu himself, were also considered.
However, the non-supply of Preetha’s statements to the detenu violated his right to an effective defense under Article 22(5) of the Constitution. The court concluded that these documents were integral to the case and their absence prevented the detenu from making a proper representation. Thus, the detention order was deemed invalid due to the non-supply of vital material.
On whether the delay in considering the detenu’s representation violated his fundamental rights under Article 22 (5) of the Constitution
The court emphasised that Article 22(5) of the Constitution mandates the government to provide the detenu with the earliest opportunity to make a representation against the detention order. This representation must be considered promptly to ensure that the detenu’s rights are protected. The court found that a significant delay in considering such representations undermines this constitutional safeguard, indicating that the prolonged detention without timely review violates fundamental rights.
The court referenced several landmark cases to illustrate the importance of prompt handling of representations:
- Tara Chand vs. State of Rajasthan[(1981) 1 SCC 416]: This case highlighted that a one-month delay in transmitting a representation from jail to the detaining authority demonstrated gross negligence, violating the provisions of Article 22(5).
- Rattan Singh vs. State of Punjab [(1981) 4 SCC 481]: The court reinforced that, regardless of the detenu’s alleged unlawful activities, it is critical to adhere to legal requirements for speedy consideration of representations. The judgment underscored the necessity of lawful procedures being followed in all cases.
- Aslam Ahmed Zahire Ahmed Shaik vs. Union of India [(1982) 2 SCC 43]: In this case, the court stressed that delays caused by intermediary authorities, like jail officials, are unacceptable. A seven-day delay in forwarding the representation to the appropriate government body was criticized, emphasizing that such delays compromise the constitutional rights of the detenu.
These cases collectively affirm the court’s stance that undue delays in addressing representations not only contravene constitutional protections but also render continued detention unlawful.
Ultimately, the court concluded that the negligent handling of the representation resulted in a delay of nearly nine months in its consideration. Consequently, the court quashed the detention order, asserting that the detenu’s right to a timely decision on his representation under Article 22(5) of the Constitution had been violated. The court ordered the immediate release of the detenu if he was not required in any other case.
Checks against preventive detention
Criminal Justice jurisprudence across the world has emphasised on the importance of checks and balances against preventive detention, even during the most urgent grounds such as national security.
The Hamdi v. Rumsfeld [542 U.S. 507 (2004)] ruling underscored that American citizens designated as enemy combatants have the right to contest their detention in court, emphasising due process protections even during wartime. Justice Ruth Bader Ginsburg highlighted the necessity of judicial oversight over executive power, asserting that Congress did not grant unchecked authority for indefinite detention. This decision significantly shaped preventive detention jurisprudence by reinforcing the importance of civil liberties amidst national security concerns.
After 9/11, the UK detained eleven foreign nationals suspected of terrorism under a state of emergency, but later the House of Lords ruled this scheme unlawful. The Court emphasized that detention must be justified, adhere to national laws, and not be arbitrary. It found the indefinite detention of non-nationals disproportionate and discriminatory, violating Article 5(1) of the European Convention on Human Rights.[1]
Procedural checks mitigate the risk of discrimination inherent in preventive detention. History shows that marginalized groups are often disproportionately targeted by security measures. Implementing fair procedures protects vulnerable populations from bias and ensures that detention decisions are based on objective criteria rather than prejudice. These safeguards also promote accountability by compelling authorities to adhere to legal standards and providing regular reviews of detention cases, ensuring that individuals are not held indefinitely without justification.
[1] A. and Others v. the United Kingdom [GC] – 3455/05
Related:
J&K High Court: Preventive detention cannot be based on a stale incident