Sarabjeet Singh Mokha vs The District Magistrate, Jabalpur & Ors.

National Security Act, 1980: s.8 – Delay in considering the representation – The requirement under s.8 of the disclosure and communication of the grounds of detention and the affording of an opportunity to the detenu of making a representation against such an order to the appropriate government, is distinct from the reference to the Advisory Board – In the instant case, in spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on 15 June 2021, the State Government took another one month in arriving at a decision on the appellant’s representation dated 18 May 2021 – By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of s.8(1) of having the representation being considered expeditiously – The communication of the grounds of detention to the detenu “as soon as may be” and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate government are intended to ensure that the representation of the detenu is considered by the appropriate government with a sense of immediacy – The State Government failed to do so – The making of a reference to the Advisory Board could not have furnished any justification for the State Government to not deal with the representation independently at the earliest – The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu – The law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA – State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.

National Security Act, 1980: Failure to communicate decision on the representation – Art.22(4), in guaranteeing a right to make a representation to the detenu creates a corresponding duty on the State machinery to render this right meaningful – The detenu’s right to make a representation and for it to be considered expeditiously would ring hollow without a corollary right of the detenu to receive a timely communication from the appropriate government on the status of its representation- be it an acceptance or a rejection – Failure in timely communication of the rejection of representation is a relevant factor for determining the delay that the detenu is protected against under Art.22(5) – Failure of the Central and the State Government to communicate the rejection of the appellant’s representation in a time-bound manner is sufficient to vitiate the order of detention.

Allowing the appeal, the Court

HELD: 1. Right to make a representation: Constitutional safeguards and legislative scheme of the NSA

1.1 Article 22(5) of the Constitution mandates that (i) the authority making the order shall “as soon as may be” communicate the grounds on which the order has been made to the person detained; and (ii) the detaining authority shall afford to the person detained “the earliest opportunity of making a representation against the order”. Clause 5 of Article 22 incorporates a dual requirement: first, of requiring the detaining authority to communicate the grounds of detention as soon as may be; and second, of affording to the detenu “an earliest opportunity” of making a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made. The expression “as soon as may be” imports a requirement of immediacy. [Para 21][491-E-F; 492-A]

1.2 The communication of the grounds is in aid of facilitating the right of the detenu to submit a representation against the order of detention. In the absence of the grounds being communicated, the detenu would be left in the dark in regard to the reasons which have led to the order of detention. The importance which the constitutional provision ascribes to the communication of the grounds as well as the affording of an opportunity to make a representation is evident from the use of the expression “as soon as may be” in the first part in relation to communicating the grounds and allowing the detenu “the earliest opportunity” of availing of the right to submit a representation. Article 22(5) reflects a keen awareness of the framers of the Constitution that preventive detention leads to the detention of a person without trial and hence, it incorporates procedural safeguards which mandate an immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by the detenu must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition. [Para 22][492-B-E]

1.3 The provisions of the NSA subscribe to the mandate of Article 22(5). Section 3(4) contains a requirement that once an order of detention has been made, the officer making the order must forthwith report the fact to the State Government, together with the grounds on which the order has been made and other particulars which have a bearing on the matter. No such order should remain in force for more than twelve days, unless it has been approved by the State Government. In the meantime, this period is subject to the proviso which stipulates that where the grounds of detention are communicated by the officer after five days (under Section 8) but not later than ten days from the date of the detention, sub-section (4) will apply as if the words fifteen days stands substituted for twelve days. Upon the State Government either making or approving the order under Section 3, it is under a mandate under Section 3(5) to report the fact to the Central Government within seven days, together with the grounds on which the order has been made and other necessary particulars. [Para 23][492-E-H]

1.4 Under Section 10, the appropriate government has to place the grounds on which the order of detention has been made within three days from the date of detention of the person together with a representation, if any, made by the person affected by the order. The Advisory Board, under the provisions of Section 11, has to submit its report to the appropriate government within seven weeks from the date of detention order after considering the relevant materials. It may call for further information from the appropriate government, or any person, or even the person concerned if they desire an opportunity to be heard in person. [Para 25][494-A-B]

1.5 When the Advisory Board has reported that in its opinion there is a sufficient cause for the detention of a person, the appropriate government may approve an order of detention and continue the detention of the person for such period as it thinks fit. On the other hand, where the Advisory Board reports that in its opinion there is insufficient cause for detention, the appropriate government shall revoke the detention order and cause the person to be released forthwith. In terms of clause (a) and (b) of sub-section (1) of Section 14, both the State Government and the Central Government have the power to revoke an order of detention. [Paras 27, 29][494-F; 495-E]

2. Delay in considering the representation

2.1 The requirement under Section 8 of the disclosure and communication of the grounds of detention and the affording of an opportunity to the detenu of making a representation against such an order to the appropriate government, is distinct from the reference to the Advisory Board. [Para 33][496-C-D]

Jayanarayan Sukul v. State of West Bengal (1970) 1 SCC 219 : [1970] 3 SCR 225; Haradhan Saha v. State of West Bengal (1975) 3 SCC 198 : [1975] 1 SCR 778; K.M. Abdulla Kunhi v. Union of India (1991) 1 SCC

476 : [1991] 1 SCR 102 – followed

Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCC

275 : [1980] 2 SCR 1095; Harish Pahwa v. State of Uttar Pradesh (1981) 2 SCC 710 : [1981] 3 SCR 276; Mohinuddin v. District Magistrate, Beed and Others (1987) 4 SCC 58 : [1987] 3 SCR 668; Ankit Ashok Jalan v. Union of India (2020) 16 SCC 127 : [2020] 2 SCR 1047; Haji Mohd. Akhlaq v. District Magistrate 1988 Supp. SCC 538, 540 – relied on.

2.2 In the present appeal, the order of detention was passed on 11 May 2021 and the appellant was detained on 12 May 2021. The order of detention was approved by the State Government on 13 May 2021, upon which the State Government submitted the order of detention to the Central Government on the same day. On 18 May 2021, the detenu submitted a simultaneous representation before the District Magistrate, State Government and the Central Government. The representation was communicated by the District Magistrate to the State Government and the Central Government on 20 May 2021. According to the appellant, the records of the Department of Post and Telegraph indicate that service was effected on the Central Government on

24 May 2021. However, the Central Government, in its counter affidavit before the High Court, has submitted that it was received in the concerned section on 1 June 2021. [Para 41][503-F-G]

2.3 On 2 June 2021, the Central Government sought parawise comments from the detaining authority. The District Magistrate forwarded comments on 10 June 2021 which were received on 11 June 2021. The representation made by the appellant dated 18 May 2021, along with the comments of the District Magistrate, were processed for consideration by the Union Home Secretary on 14 June 2021. On 24 June 2021, the Union Home Secretary rejected the representation of the appellant, which is alleged to have been communicated by a wireless message to the detenu on 28 June 2021. There was a one-and-a-half-month delay on the part of the Central Government in considering the representation dated 18 May 2021 and rejecting the same only on 24 June 2021. [Para 42][504-A-C]

2.4 The appellant had also submitted a representation against the order of detention to the State Government on 18 May 2021. An additional reply was filed by the District Magistrate on 12 August 2021 before the High Court. The District Magistrate having received the representation on 18 May 2021, communicated it to the State Government and the Central Government on 20 May 2021. The State Government rejected the representation, after the decision of the Advisory Board. Until the representation was rejected by the Advisory Board on 15 June 2021, no steps had been taken by the State Government to deal with the appellant’s representation dated 18 May 2021. In the counter-affidavit of the District Magistrate before this Court as well as in the written submissions supplied by the AAG, it appears that the representation was rejected by the State Government on 15 July 2021. However, this Court has neither been provided with a copy of such rejection or proof of communication of this rejection to the detenu, nor an explanation for the almost 60 day delay in considering the appellant’s representation. [Paras 43, 44][504-C-D, G-H; 505-A-C]

2.5 There is absolutely no reasonable basis for explaining the circumstances in which the representation dated 18 May 2021 was not considered by the State Government until after the Advisory Board had submitted its report on 15 June 2021. The consideration of the representation by the State Government is qualitatively different from the reference to the Advisory Board. This Court, Ankit Ashok Jalan had held that in State Government is not bound to wait on the Advisory Board’s report before deciding the representation and must do so, as expeditiously as possible. In spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on 15 June 2021, the State Government took another one month in arriving at a decision on the appellant’s representation dated 18 May 2021. The State Government did not furnish any valid reasons for either of the two courses of action. [Para 45][505-C-E]

2.6 By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. The communication of the grounds of detention to the detenu “as soon as may be” and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate government are intended to ensure that the representation of the detenu is considered by the appropriate government with a sense of immediacy. The State Government failed to do so. The making of a reference to the Advisory Board could not have furnished any justification for the State Government to not deal with the representation independently at the earliest. The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. The law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA. The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution. [Para 46][505-F-H; 506-A-B]

3. Failure to communicate decision on the representation

3.1 The respondent could not furnish proof of the appellant’s receipt of the Central Government’s rejection of representation dated 24 June 2021. The wireless message dated 28 June 2021, issued from the Ministry of Home Affairs of the Central Government to the Home Department of the State Government, communicated the rejection of the representation submitted by the detenu. The SP of the Central Jail, Jabalpur was directed to serve a copy meant for the detenu. The State Government was also directed to inform the detenu. Though in the writ petition as it was originally filed, there was no specific ground that the rejection of the representation was not communicated to the detenu, a specific ground to that effect was raised in the rejoinder filed before the High Court. There is absolutely no material coming forthwith to indicate that the rejection of the representation by the Central Government was communicated to the detenu. [Para 47][506-D-F]

3.2 Article 22(4), in guaranteeing a right to make a representation to the detenu, understandably creates a corresponding duty on the State machinery to render this right meaningful. The detenu’s right to make a representation and for it to be considered expeditiously would ring hollow without a corollary right of the detenu to receive a timely communication from the appropriate government on the status of its representation- be it an acceptance or a rejection. [Para 49] [507-B-C]

State of Punjab v. Sukhpal Singh (1990) 1 SCC 35 : [1989] 1 Suppl. SCR 420; Madan Lal Anand v. Union of India (1990) 1 SCC 81 : [1989] 1 Suppl. SCR 733 – relied on.

Union of India v. Saleena (2016) 3 SCC 437 : [2016] 1 SCR 373 – held inapplicable

3.3 The AAG has furnished no reasons for the failure to communicate the State Government or Central’s government rejection of the appellant’s representation. This failure in timely communication of the rejection of representation is a relevant factor for determining the delay that the detenu is protected against under Article 22(5). Accordingly, the order of detention is invalidated on two grounds: first, the unexplained delay on part of the State Government in deciding the representation of the appellant and second, the failure of the Central and State Governments to communicate the rejection of the representation to the appellant in a timely manner. Once the order of detention stands invalidated, the consequential extensions would follow the same course. [Paras 54, 55][509-F-G; 510-A-C] Ankit Ashok Jalan v. Union of India 2020 (16) SCC

127 : [2020] 2 SCR 1047; Harish Pahwa v.State of Uttar Pradesh 1981(2) SCC 710: [1981] 3 SCR 276; Raj Kishore Prasad v. State of Bihar 1982 (3) SCC 10; Wasiuddin Ahmed v. District Magistrate, Aligarh 1981

(4) SCC 521 : [1964] 8 SCR 295; Biren Dutta v. Chief Commissioner of Tripura AIR 1965 SC 596; Khaja Bilal Ahmed v. State of Telangana 2020 (13) SCC 632; Anshul Jain v. The State of Madhya Pradesh WP No. 1118 of 2021; Ghanshyam Upadhyay v. State of Uttar Pradesh 2020 (16) SCC 811; Tanveer Patel v. State of Madhya Pradesh 2020 SCC Online MP 2021; Khaja Bilal Ahmed v. State of Telangana 2020 (13) SCC 632; Sama Aruna v. State of Telangana (2018) 12 SCC 150 : [2017]

4 SCR 52; Ramesh Yadav v. District Magistrate Etah (1985) 4 SCC 232; Lakshman Khatik v. State of West Bengal (1974) 4 SCC 1; Yumman Ongbi Lembi Liema v. State of Manipur (2012) 2 SCC 176 : [2012] 1 SCR 1; Rameshwar Shaw v. District Magistrate Burdwan AIR 1964 SC 334 : [1964] 4 SCR 921; Ramveer Jatav v. State of Uttar Pradesh (1986) 4 SCC 726; Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14 : [1984] 3 SCR 435; PP Rukhiya v. Joint Secretary (2019) 20 SCC 740; Pebam Ningol Mikoi Devi v. State of Manipur 2010

(9) SCC 618 : [2010] 12 SCR 429; Rajendra Singh v. State of Uttar Pradesh 2007 (7) SCC 378 : [2007] 8 SCR 834; Mohinder Singh Gill v. Chief Election Commissioner, New Delhi (1978) 1 SCC 405 : [1978] 2 SCR 272; Rameshwar Shah v. District Magistrate [1964] 4 SCR 921; State of Punjab v. Sukhpal Singh (1990) 1 SCC 35 : [1989] 1 Suppl. SCR 420; Pebam Ningol Mikoi Devi v. State of Manipur (2010) 9 SCC

618 : [2010] 12 SCR 429; State of Tamil Nadu v. Nabila (2015) 12 SCC 127: [2014] 12 SCR 405; Subhash Bhandari v. District Magistrate (1987) 4 SCC 685 : [1988] 1 SCR 773; David Patrick Ward v. Union of India (1992) 4 SCC 154 : [1992] 1 Suppl. SCR 26; Shafiq Ahmed v. District Magistrate (1989) 4 SCC 556 : [1989] 1 Suppl. SCR 56 – referred to.