National Security Act: Failure To Communicate Rejection Of Detenu's Representation In Time Bound Manner Will Vitiate Detention Order : Supreme Court

The Supreme Court observed that failure of Government to communicate rejection of a detenu's representation in a time-bound manner is sufficient to vitiate the order of detention passed under National Security Act.

The three judges bench headed by Justice DY Chandrachud said that the detenu has right to have his representation considered expeditiously- failing which the detention order would be invalidated. This right 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, the bench also comprising Justices Vikram Nath and BV Nagarathna said.

The accused, in this case, was arrested after an FIR registered against him alleging that he procured fake Remdesivir injections which were administered to patients during the Covid-19 pandemic in order to make illegal profits thereby endangering the life of the general public. Later, he was detained under Section 3(2) of the NSA, for a period of three months. He submitted a representation against the order of detention both to the Home Department of the State Government and the Ministry of Home Affairs of the Central Government. In terms of the provisions of Section 10 of the NSA, the State Government submitted the grounds for detention and the representation of the appellant to the Advisory Board constituted under Section 10. The Advisory Board submitted its report to the State Government under Section 11 on 15 June 2021 opining that there was sufficient cause for the detention. The detenu challenged the detention order before the High Court. Against the order dismissing his writ petition, he approached the Apex Court.

Before the Apex Court, he contended inter alia that the State Government also did not furnish a reply to the representation, allegedly rejected by it on 15 July 2021, except in its additional reply that was filed before the High Court on 12 August 2021.

The bench, at the outset, noted that 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", The court observed:

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. 22 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

The court noted that the representation made by the appellant on 18 May 2021, was allegedly rejected after almost two months on 15 July 2021 by the State Government. In this context, the court observed:

46 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. As we have noted earlier, 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 PART D 38 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. It is necessary to understand that 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.

The court added that there was a failure in timely communication of the rejection of representation which is a relevant factor for determining the delay that the detenu is protected against under Article 22(5). The court said:

49 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 meaningingful. In Section D.1 of the judgement, we have detailed this Court's PART D 40 settled precedent on the detenu's right to make a representation and for it to be considered expeditiously- failing which the detention order would be invalidated. However, this right 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.

54 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). Based on the precedents of this Court, we hold that the 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.

Holding thus, the bench set aside the High Court judgment and quashed the detention order.

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