Madras High Court Issues Compendium Of Procedure To Be Followed By Advisory Board Constituted Under TN Preventive Detention Act

The bench of Justice R Suresh Kumar and Justice KK Ramakrishnan made it clear that the compendium was to be strictly followed by the State Advisory Board till the State came up with a law within Article 22(7)(c) of the Constitution. Article 22(7)(c) empowers the Parliament to prescribe laws to be followed by the advisory board while considering the detention of a person.

The court was hearing habeas corpus petitions challenging detention orders on the ground that the Advisory Board had not properly considered the materials placed before it while allowing the detention to continue. When the court asked for the records, it found that the Advisory Board had merely given a two-line opinion stating that there was sufficient reasons to continue the detention without elaborating the materials based on which the opinion was arrived at. This prompted the court to relook the procedure followed by the Advisory Board while dealing with matters referred to it.

When the court raised queries, the State informed that after hearing a case, the Board will send a report and its Opinion to the Government with a separate covering letter. The state informed that the Advisory Board would go through the entire booklet forwarded by the Government, the documents and written representation submitted by the detenu, the oral representations and all the materials will be forwarded to the Government with a separate covering letter.

Based on the status report submitted by the State, the court noted that at present the State only had one Advisory Board which was overburdened and could end up spending less than half an hour for a particular case. The court commented that since the existing board was already overburdened there could be a lack of proper functioning of the Board. The court opined that the Government should come forward to take the necessary steps to constitute another Board.

“So it is the timely requirement to constitute at least one more Board with all infrastructures and the same was expressly stated in the Act itself. Not only the Act as well as the Constitution also provided the same… Even otherwise, the Preventive Detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. So in order to safeguard the detenu's constitutional right, the Government should come forward to take necessary steps to constitute another Board at Madurai and allot the Districts come under the purview of the Madurai Bench of Madras High Court,” the court observed.

The court also noted that though a constitutional mandate was provided to frame law on the conduct of proceedings by the Advisory Board, the legislature had not framed any such procedural law. The court added that because of this absence, whenever an Advisory Board was constituted, it would adopt its own procedure which would then lead to complaints and litigations. Thus, considering the absence of legislature, the court deemed it fit to lay down a mandatory procedure to be adopted by the Advisory Board.

The court thus issued the following directions:

• The proceedings, report and opinion by the Advisory Board is amenable to Judicial Review.
• The Advisory Board, after assuming charge, must take all pending detention orders which has been referred to them and shall decide them as early as possible within the statutory period under the Act.
• The Advisory Board shall ensure proper notice/summons to be served to the detenu and his/her family providing 10 days time in advance from the date of hearing.
• The Secretariat to the Advisory Board shall ensure that all representations received are put up along with the paperbook/detention order and placed before Advisory Board members in advance.
• The jail authorities shall bring the detenu on the date of hearing before the Advisory Board at least 2 hours prior.
• The Board shall give reasonable opportunity of hearing to the detenu and his family.
• If the detenu or his family refer to any specific documents, the same shall be considered by the board.
• The board shall take a decision and record the proceedings out of which a report should be drafted giving out the reasons for coming to the conclusion.
• The records must be maintained by the Secretariat of the Board for future reference and Judicial Review.
• The report and opinion shall form part of the documents to be forwarded to the State Government.
• Upon receiving the report, the State Government, shall act upon and pass final orders confirming the detention order or otherwise.

Counsel for the Petitioner: Mr.R.Alagumani, Mr.J.Sankara Pandian

Counsel for the Respondents: Mr.A.Thiruvadi Kumar APP, Mr.B.Kumar, Senior Counsel (Amicus Curiae), Mr.C.Arul Vadivel @ Sekar Senior Counsel (Amicus Curiae) Mr.K.Prabhakar (Amicua Curiae)

Citation: 2024 LiveLaw (Mad) 1

Case Title: Ganeshkumar v The Principal Secretary to Government and Others

Case No: H.C.P.(MD).Nos.1111, 1350 and 1382 of 2022

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