Preventive Detention is “Jurisdiction of Suspicion”: Kerala HC

The Kerala High Court analysed concepts of liberty and preventive detention while dealing with a batch of habeas corpus petitions. In the judgment, the bench of Justice A.K. Jayasankaran Nambiar and Justice P Gopinath emphasized upon the due procedure to be followed in carrying out preventive detention and the rights of the detenu, as laid under the Constitution.

The court termed preventive detention as “jurisdiction of suspicion” and highlighted certain clauses under Article 22 of the Constitution that need to be followed with respect to effective communication of grounds, timely execution of detention order and consideration of representation of the detenu. The court held that unexplained delay in these processes could vitiate the detention order and set the detenu free.

Background

The 3 petitions were heard and decided together as the issues raised were common. One case was of smuggling of cigarettes while the other two were of two brothers caught for smuggling gold.

The judgement begins with an extract from a 1951 judgment of the Supreme Court in Ram Singh v. State of Delhi where Justice Vivian Bose inter alia stated,

“I fully agree that the fundamental rights conferred by the Constitution are not absolute. They are limited… It is our duty and privilege to see that rights which were intended to be fundamental are kept fundamental and to see that neither Parliament nor the executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms; and in the case of the executive, to see further that it does not travel beyond the powers conferred by Parliament.”

The court was dealing with habeas corpus petitions concerned with liberty of persons accused under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA). Before delving into the facts of the cases and the arguments of the parties, the court analysed the concept of liberty as put forth by philosopher John Stuart Mill and liberty as recognized by the Indian Constitution. The court then analysed preventive detention calling it a “jurisdiction of suspicion”

Preventive detention

The court interpreted the word “law” in Article 21 which states that no person shall be deprived of his life or personal liberty except according to procedure established by “law”. As per the court, the Article envisages the word “law” having the same meaning as the American phrase “due process of law”, meaning thereby a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. 

However, Article 22 carves out an exception in the case of preventive detention by making it clear that the procedural safeguards against arbitrary arrest and detention are not applicable to any person who is arrested or detained under any law providing for preventive detention. The court states that the Constitution has conceded power of preventive detention but through clauses (4) to (7) of Art.22, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty. The court said,

“It is therefore that when an application for a writ of Habeas corpus is filed before us, we feel duty bound to satisfy ourselves that all the safeguards provided by the law have been scrupulously observed, and the citizen is not deprived of his personal liberty otherwise than in accordance with law.”

The court observed that while considering such applications, courts do not follow strict rules of pleading, and often relax the rigour of the evidentiary rules governing burden of proof but detaining authority is called upon to place all materials before the court to show that the detention is legal.

Due procedure – communication of grounds

The court points to Article 22(5) which states that when a person is detained in pursuance of a detention order, the detaining authority shall, as soon as may be, communicate to such person the grounds, save such facts which the authority considers to be against public interest to disclose, on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

As per the court “effective communication of grounds” entails presenting the detenu with documents in its entirety such as statements or any other materials relied upon in the grounds “because being incorporated in the grounds of detention, they form part of the grounds, and the grounds furnished to the detenu cannot be said to be complete without them.” The court further said,

“The right to be supplied copies of the documents, statements and other materials relied upon in the grounds of detention, without any delay, flows directly as a necessary  corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the latter cannot be meaningfully exercised. If the grounds of detention, as above, were not furnished to the detenu within the time permitted under the law, the continued detention of the detenu would be illegal and void.”

The court further states that the grounds must also include the reasons that weighed with the detaining authority for forming such an opinion based on the material scrutinized by him. The court emphasized that the detaining authority has to state reasons why he came to be satisfied that the person should be detained on the basis of the material available. It said,

“The supply of reasons is what clothes his ‘subjective satisfaction’ with the legitimacy that is required of action designed to deprive a person of his/her fundamental right to personal liberty. In its absence, the detenu does not get an effective right of representation against the detention, or an opportunity to show that there were no valid reasons to support the same.”

The court stated that if it finds that the order of the detaining authority is not based on relevant material or does not contain any reason for its decision, “this court would step in to free the detenu from the shackles of an illegal detention”.

Due procedure – delays

The court stated that an unexplained delay in passing the order or representation by the detenu, consideration of the same by the authority will vitiate the order and entitle the detenu to immediate release. The court held that the delay has to be explained, no matter how short the delay is.

The court held that delay in executing the detention order can also vitiate the order “since an unexplained delay leads the court to infer that there was no subjective satisfaction arrived at by the detaining authority as regards the need to detain the detenu”.

The court highlighted the manner in which the detenu’s representation is to be considered by detaining authority, the appropriate government and the advisory board. The government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient cause for the detention.

In WP(Crl) 255/2020 the detenu was detained on July 13, 2020 while the order was issued on March 31, 2017 as the detenu was not in India when the order was passed and was apprehended as soon as he arrived. The court held that an absconding detenue cannot cite a delay in the execution of the order to contend that the detention order must be quashed on that ground. The court considered few other contentions raised by the petitioner, however, found no merit in them.

In the second cases of two brothers, the detention order was passed in July 2019 and Abdussameem was detained in May 2020 while Faisal was detained in July 2020. In July, Abdussameem requested that certain documents be provided to him in order to enable him to make effective representation before the Advisory Board. However, this request was rejected and eventually his detention was confirmed by the Board in August 2020. Faisal also made a similar request which was also rejected and his detention was confirmed in September 2020.

The detention of the two brothers was challenged in two petitions and it was argued that necessary documents were not supplied to them and there was considerable delay in execution of detention orders as well as in considering their representations. The court concluded that the denial of documents requested for affected the right of the detenues to make a proper and effective representation. The court also held that there was delay in executing the detention orders.

“We are at a loss to understand why the detention orders could not have been executed, by apprehending the detenus much earlier, if indeed the object of the whole exercise was to prevent them from engaging in prejudicial acts in future. The cavalier attitude of the detaining authority in the instant cases cannot be countenanced and, at any rate, cannot justify the continued detention of the detenus concerned”.

The court allowed the two writ petitions of the two brothers and ordered that they be set at liberty forthwith and dismissed the other petition where the detenu was charged with smuggling of cigarettes as the court found no merit in the contentions raised in the light of the facts of the case.

The complete judgement may be read here:

Courtesy: Sabrang India