[KAAPA Act] Preventive Detention Involves Curtailment Of Precious Constitutional Guarantees, High Degree Of Diligence Expected From Authorities: Kerala High Court

In the present case, the representation was submitted by the detenu to the government on February 15, 2024, against the detention order.  It was considered only on April 08, 2024, after receipt of the report from the Advisory Board on March 19, 2024.

The Division Bench comprising Justice A.Muhamed Mustaque and Justice S Manu held that lethargy, lapses, negligence, delay and callousness on the part of the authorities in considering representations in preventive detention cases violates Article 22 (5) of the Constitution of India.

“It is true that there is no inflexible rule regarding the time available to the Government to consider the representation. However, the Government is bound to consider the representations submitted at the earliest and in case of delay, the Government shall be in a position to explain and justify the same to avoid interference by the constitutional courts in the matter. Diligence of a very high degree is expected from the authorities in cases of preventive detention as it involves curtailment of some of the most precious constitutional guarantees. Utmost expedition is essential in handling the representations submitted by the detenus invoking their constitutional right under Article 22 (5). “

The mother of the detenu had approached the High Court for the issuance of a writ of Habeas Corpus against the detention of her son under the KAAPA Act.

The detention order was issued by the District Magistrate on January 27, 2024 due to three pending criminal cases and one case still under investigation against the detenu.

The detenu's mother contended that representation was submitted before the State Government represented by the Additional Chief Secretary of the Home Department on February 15, 2024, which was not considered promptly. It was submitted that the representation was decided only on April 08, 2024, after receipt of the report from the Advisory Board on March 19, 2024. It was argued that there was a delay in considering the representation and also in communicating the decision to the detenu.

The Court found that the government did not act on the representation submitted by the detenu until the report was obtained from the Advisory Board. It further noted that decision of the representation was only communicated to detenu on April 17, 2024, after a delay of 2 months of submitting it.

The Court found that the detaining authority does not have the power to revoke the detention order and only the government can revoke it under the KAAPA Act. Relying upon Golam Biswas v. Union of India and another (2015), it stated that the State government is bound to wait for the report of the Advisory Board when it receives a representation after reference was made to the Advisory Board. The Court thus stated that the decision of the government to wait for the report of the Advisory Board was proper and legal.

However, the Court ruled that even after the report of the Advisory Board was received, the government delayed in deciding on the representation and then again delay occurred in communicating the decision to the detenu.

Relying upon Apex Court decisions, it was stated that continued detention due to unexplained delay in consideration of representations by the authorities is unconstitutional.

In the facts of the case, the Court ruled that there was a fatal delay of 19 days by the government in considering the representation even after the receipt of the report of the Advisory Board.

It held that the government should have diligently and expeditiously considered the representation after obtaining the report of the Advisory Board. It went on to state that the government should have communicated the decision taken on the representation within the shortest possible time.

“However, for a breach of the duty on the part of the Government to consider the representations submitted by the detenu after execution of the detention order, this court need not pronounce upon the validity of the detention order as such”, added the Court.

The Court thus declared the continued detention of the petitioner's son as illegal and ordered him to be released.

Counsel for Petitioner: Advocates C.Rajendran, B.K.Gopalakrishnan, R.S.Sreevidya, Manu M.

Counsel for Respondents: Government Pleader K A Anas

Citation: 2024 LiveLaw (Ker) 327

Case Title: Geetha v State of Kerala

Case Number: WP(CRL.) NO. 487 OF 2024

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