What Are Detaining Authority's Obligations While Communicating Grounds Of Preventive Detention To Detenu? Delhi High Court Answers

The Delhi High Court on Friday laid down the legal position regarding the detaining authority's obligation to communicate to a detenu the grounds of detention.

A division bench comprising of Justice Siddharth Mridul and Justice Anup J Bhambhani observed the following:

- A detenu has a fundamental right under Article 22(5) that the grounds on which a detention order has been made against him, be communicated to him as soon as may be; and that he be afforded an opportunity of making a representation against the detention order at the earliest.

- Interpreting the scope and operation of this fundamental right, the Hon'ble Supreme Court has laid down that 'communication', within the meaning of Article 22(5), means imparting to the detenu sufficient knowledge of the grounds on which a detention order has been made; so that the detenu is in a position to effectively make a representation against the order. More specifically, the Hon'ble Supreme Court has said that oral explanation or oral translation of the grounds of detention would not amount to communicating the grounds to a detenu.

- The purpose of Article 22(5) is not served if the grounds of detention are only verbally explained and nothing in writing is left with the detenu in a language which he understands.

- Communicating the grounds of detention effectively and fully to a detenu implies that the grounds must be furnished to him in a language which the detenu understands; and if that entails translation of the grounds to such language, then that is part of the Constitutional mandate.

- In fact, the Hon'ble Supreme Court goes further to say, that it is incumbent that even the documents 'relied- upon' in the grounds of detention must be supplied to the detenu, translated into a language the detenu understands; and it is not necessary for the detenu to even demonstrate prejudice to obtain translated version of the 'relied-upon' documents.

- However, insofar as documents that are only 'referred-to' in a detention order are concerned, if the detenu complains of non-supply of those documents or their translations, the detenu must show what prejudice is caused to him by such non-supply in making an effective representation.

- For completeness, where a detenu is illiterate, it has been held by the Hon'ble Supreme Court that the mandate of Article 22(5) would be served if the grounds of detention are explained to the detenu in a language that he understands, so as to enable him to avail the fundamental right of making a representation.

- Merely because a detenu is able to sign or write a few words in English or any other language, does not mean that the detenu is 'conversant with the language', since the detenu may yet not be able to effectively understand the contents of the grounds of detention and the relied-upon documents, to be able to make an effective representation against the detention order.

- Whether a detenu is conversant with a given language; or is merely feigning ignorance; or has sufficient working knowledge to understand the grounds of detention and the contents of documents relied-upon, would depend upon the facts and circumstances of each case, which a court may reasonably ascertain.

- It would always be the safer course to furnish translations of the grounds of detention and the documents relied-upon in the language that a detenu understands.

The Court was dealing with a habeas corpus plea filed by one Jasvinder Kaur seeking a direction for the production of her son, Harmeet Singh, who the petitioner alleged, was illegally detained by the respondents in a customs case.

The petitioner further sought quashing of detention order issued under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by the Joint Secretary COFEPOSA under which the petitioner's son was in preventive detention with Tihar Jail, New Delhi.

The detention order also stood confirmed by the Department of Revenue, Ministry of Finance vidé order dated 11.08.2021.

It was the case of the Ministry that several other articles and goods, including drones and cameras were recovered from the other persons apprehended along with Harmeet Singh and that the total value of the goods seized and confiscated under sections 110 and 111 of the Customs Act was stated to be about Rs. 1,09,74,500.

A challenge was made to the impugned detention order at the pre-execution stage which was dismissed by the High Court. A Special Leave Petition preferred against the dismissal of the said writ petition, which was also dismissed by the Supreme Court.

It was thus the petitioner's case that the impugned detention order violated Articles 21 and 22(5) of the Constitution of India, contending that the order was vitiated for non-compliance of the procedure established by law.

It was argued that the detenu har only studied till class 10, after which he had dropped-out of school. It was therefore submitted that the detenu barely understood English and could not make sense of the voluminous detention order comprising some 717 pages.

Laying down the above mentioned legal position, the Court observed thus:

"Merely because Harmeet Singh signed several documents in English and was able to string a few words into sentences, evidently on the urging of the concerned officers, is no basis to impute to him sufficient working knowledge of the English language. We may add, that the record shows that Harmeet Singh is a Class X drop-out and that he last attended a Hindi Medium school, which is not controverted by the Ministry. Although, out of his three statements recorded under section 108 of the Customs Act, the first statement dated 02.02.2019 was recorded in English and two statements dated 22.04.2019 and 31.01.2020 were recorded in Hindi."

The Court was of the view that there was need for the statement recorded in English to be explained to the detenu in the vernacular by an interpreter, which was necessary as English was not a language that Harmeet Singh sufficiently understood.

The Court added that the defensive wording of the notation left no doubt that it was made at the behest and instance of customs officials.

"In fact, in our opinion, to also best serve the legal interests of the detaining authority, it should be the preferred course of action in all cases, that on the mere asking of a detenu, a complete set of detention order along with the grounds of detention as also all relied-upon documents, should be furnished to a detenu in the language in which the detenu requests. It would be preferable that the detaining authority should take such request in writing from a detenu and must formally serve upon the detenu the translated papers as requested expeditiously, against acknowledgement, to obviate challenges such as the present one, which we find are frequently made," the Court said.

Accordingly, the Court quashed the impugned detention as being against the constitutional mandate contained in Article 22(5) of the Constitution as interpreted by the Hon'ble Supreme Court.

"As a sequitur, detenu Harmeet Singh, son of the petitioner Ms. Jasvinder Kaur, is directed to be released from preventive detention forthwith, unless required in any other case. The present habeas corpus petition is allowed and disposed of with the above directions," the Court ordered.

Case Title: JASVINDER KAUR v. UNION OF INDIA

MINISTRY OF FINANCE DEPARTMENT OF REVENUE AND ORS.

Citation: 2022 LiveLaw (Del) 128

Click Here To Read Order