Preventive Detention- Karnataka High Court Issues Guidelines On Consideration Of Detenu's Representation

A division bench of Justice B V Nagarathna and Justice Hanchate Sanjeevkumar, while allowing a petition filed by Rizwan Pasha @ Kulla Rizwan, also said that "Article 22(5) confers on the detenu, the right to make a representation against the order of detention prior to its confirmation. This right implies a corresponding duty or obligation on the part of the State Government to consider the representation of the detenu at the earliest opportunity. The substance of the said right could be applied even to a case of consideration of a detenu's representation post-confirmation of the detention."

The court then issued the following guidelines/directions:

(i) That whenever an order of detention is followed by an order of confirmation of detention made by the State under Section 12 read with Section 13 of the (Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video and Audio Pirates Act), liberty is reserved to the detenu to make a representation.

(ii) In such a case, the representation would have to be considered by the State under Section 14 of the Act in the context of revocation or modification of the order of detention.

(iii) Such a representation, when made to the Jail Superintendent/Jail Authority by the detenu, must be transmitted to the concerned officer/authority who is vested with the responsibility/obligation to consider such a representation at an earliest possible time. The use of technology in this regard has to be underscored. Such a representation can be scanned or sent in any other instantaneous mode by the Jail Authority to the concerned officer or authority.

(iv) If a case-worker is entrusted with the file of a particular detenu, it is the duty of the case-worker to put up the representation immediately on receipt of the same before the concerned officer or authority for consideration of the same.

(v) For the said purpose, the State has to devise a system or channel under which such representations could reach the concerned officer or authority in an expeditious manner.

(vi) On such representation being placed before the concerned authority or officer, the same has to be considered as expeditiously as possible and in the earliest point of time. What is the said time cannot be defined in specific terms. The same would depend upon the nature of the representation made by the detenu.

(vii) It is needless to observe that precious time cannot be lost in the transmission of the representation to the concerned department and thereafter, in placing the same by the case worker before the concerned officer or authority. Hence, the State may issue further guidelines/directions in that regard to all the jail authorities/jail superintendents wherein persons are detained under the respective laws provided for preventive detention so that the representations made post confirmation of such detention are considered in time under Section 14 of the Act.

(viii) On consideration of the representation of the detenu, the order made thereon must be communicated to the detenu through the concerned jail authorities so that if the order is for release of the detenu, he is released forthwith or if it is modification of the detention order, in which event, it could be an earlier release and the same would also have to be intimated to the detenu. Similarly, if the representation is rejected, it must also be communicated to the detenu forthwith so as to enable the detenu to take recourse in accordance with law.

(ix) On such communication being sent, the jail authority, which receives the same, must inform the authority which has made the order, about the receipt of communication and about the intimation of the said communication to the detenu.

(x) The State Government to issue guidelines to the respective jail authorities and other officers/authorities in the Department of Home Affairs with regard to the aforesaid directions.