Habeas Corpus Pleas Against Preventive Detention Should Be Heard By Division Bench: Gujarat HC [Read Judgment]

In a significant order passed by the Gujarat High Court last month, it has been strongly recommended that the petitions challenging the executive orders of preventive detention, should be treated as Habeas Corpus Petitions and should be heard by a Division Bench.

While hearing challenge to a single-Bench order declining to look into the legality and validity of the detention order passed against the Appellant, Haidarsha Pir, on the ground that he had already preferred a representation to the Advisory Board (PASA), the Bench of Chief Justice Vikram Nath and Justice JB Pardiwala said,

"The preventive detention Act restricts citizens' personal liberty which is a fundamental right under the Constitution. It is to be reviewed strictly as far as possible and in a manner that does not restrict that right to an extent greater than is necessary to effectuate that object. Therefore, the provisions of such preventive detention Act have to be applied with watchful care and circumspection…

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We would suggest that the preventive detention matters should be treated as the Habeas Corpus Petitions and a Habeas Corpus Petition, questioning the legality and validity of an order of preventive detention should be heard by a Division Bench of this Court and not by a Single Judge."

The Court recollected that prior to 1995, Habeas Corpus Petitions filed under Article 226 of the Constitution of India were placed for hearing before a Division Bench. However thereafter, Gujarat High Court Rules were amended so as to make the Habeas Corpus Petitions and other detention matters except the matter under the COFEPOSA triable by a Single Judge.

Disagreeing with this amendment it said,

"We are of the view that the amendment, referred to above, needs to be re-looked as we would suggest that the preventive detention matters should be treated as the Habeas Corpus Petitions and a Habeas Corpus Petition, questioning the legality and validity of an order of preventive detention should be heard by a Division Bench of this Court and not by a Single Judge."

Reliance is placed on previous judgments of the High Courts of Bombay and Allahabad and has also the Supreme Court Rules, 2013.

In Shivshankarlal Gupta & Anr. v. CTA Pillai & Ors., AIR 1976 Bom. 165, the Bombay High Court had held,

"looking to the history of the exercise of habeas corpus jurisdiction by the High Court in this country we think that the Rule requiring such petitions to be filed before a Division Court taking criminal business of the Appellate Side is in consonance with the historical background as also with the historical background as also with the nature of processes that are associated with the enforcement of preventive laws. For these additional reasons we think it would be appropriate and not all unlawful that the present manner of presenting these applications before a Division Court taking criminal business of the Appellate Side is continued."

The Registry has now been directed to prepare an appropriate submission in this regard and place it before the Chief Justice or its administrative side.

Background

The Appellant herein came to be preventively detained vide the detention order dated 29th July, 2020 passed by the District Magistrate, Kachchh-Bhuj as a "dangerous person" by virtue of the powers conferred under the Gujarat Prevention of Anti-Social Activities Act, 1985.

This order was challenged before the High Court however the Single-Judge declined to look into the matter as a representation in that regard was already pending before the PASA Board and, "in such circumstances, the appellant should wait for the outcome of his representation."

In appeal, the Division Bench proceeded to examine whether a writ application filed by a detenue, preventively detained, can be rejected at the threshold on the ground that the detenue should wait for the outcome of his representation addressed to the PASA Board?

It observed that the issue is no longer res integra as in Prabhu Dayal Deorah v. The District Magistrate, Kamrup, [1974] 1 SCC 103, the Supreme Court had held as udner:

"We think that the fact that the Advisory Board would have to consider the representations of the petitioners where they have also raised the contention that the grounds are vague would not in any way prevent this Court from exercising its jurisdiction under Article 32 of the Constitution. The detenu has a right under Article 22(5) of the Constitution to be afforded the earliest opportunity of making a representation against the order of detention. That constitutional right includes within its compass the right to be furnished with adequate particulars of the grounds of the detention order. And, if their constitutional right is violated, they have every right to come to this Court under PG NO 1086 Article 32 complaining that their detention is bad as violating their fundamental right. As to what the Advisory Board might do in the exercise of its jurisdiction is not the concern of this Court."

The Court ruled that the concept of alternative remedy and the power of the High Court to entertain a writ application under Article 226 of the Constitution of India is "foreign" to cases wherein the challenge is to an order of preventive detention. It held,

"When a citizen of this country complains of infringement of his right of personal freedom and liberty as embodied under Articles 21 and 22 of the Constitution respectively, then the High Court should not decline to entertain his challenge to such preventive detention on the ground that the detenue has an alternative remedy of filing a representation before the authority concerned."

On the merits of the case, the Court observed that the offences alleged to have been committed by the Appellant are such as to attract the punishment under the Mines & Minerals (Development & Regulation) Act, 1957 as well as the IPC. However, it was of the opinion that taking recourse to the preventive detention laws for the said offences "would not be warranted".

"Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But, such detention cannot be made a substitute for the ordinary law and absolve the Investigating Authorities of their normal functions of investigating the crimes which the detenue might have committed," the Court said while ordering forthwith release of the Appellant-detenu.

Case Title: Haidarsha Pir v. State of Gujarat

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