'A Jurisdiction Of Suspicion': Kerala High Court Lays Down Guidelines For Detention Under Preventive Detention Laws

The judgment, pronounced by a Division Bench of Justices AK Jayasankaran Nambiar and Gopinath P, stresses,

"…if the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the constitution and the law, and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be."

The Bench interpreted the safeguards against preventive detention provided in the constitution when confronted with three habeas corpus petitions challenging detentions under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA).

Explaining how the procedural safeguards against preventive detention prescribed by the Constitution were to be interpreted by the High Court in matters relating to preventive detention, the bench remarks,

"It is therefore that when an application for a writ of Habeas corpus is filed before us, we feel duty bound to satisfy ourselves that all the safeguards provided by the law have been scrupulously observed, and the citizen is not deprived of his personal liberty otherwise than in accordance with law. While considering such applications, our courts do not follow strict rules of pleading, and often relax the rigour of the evidentiary rules governing burden of proof. The detaining authority, on the other hand, is called upon to place all materials before the court to show that the detention is legal and in conformity with the mandatory provisions of the law authorizing such detention."

Safeguarding liberty against preventive detention law's jurisdiction of suspicion – How the Court interprets Clauses 4 to 7 of Article 22

At the outset of its judgment, the Bench emphasises that the Constitution has conceded the power of preventive detention under Article 22 of the Constitution. However, Clauses 4 to 7 of the Article provide procedural safeguards against arbitrary and unjustified invasion of personal liberty, it is pointed out.

The Court therefore, reads from Clause 4 to highlight that preventive detention law cannot authorise the detention of a person for a period longer than 3 months unless an Advisory Board constituted finds sufficient cause for detention over this period. Another situation drawn by the Court is where the statute concerned expressly provides for a prolonged detention without obtaining the opinion of the Advisory Board.

The 'barest minimum' safeguard- communicating the grounds of detention to the detenu

Describing the communication of the grounds of detention to the detenu as 'the barest minimum safeguard before detention', the Court underscores the duty cast upon a detaining authority by Article 22(5) to communicate the grounds of detention to the detenu so as to allow him to make representation against the order. The COFEPOSA mandates communicating the grounds within five days, or fifteen days in 'exceptional' circumstances.

Laying emphasis on the content of the communication, the judgment urges that the purpose of the communication is to allow the detenu to make representation against the detaining order.

The judgment reckons the following as necessary for a communication for preventive detention –

• The grounds of detention must be furnished in their entirety
• All relevant material relied upon such as documents and statements must be communicated since they form part of the 'grounds of detention'
• The detaining authority's train of thought, starting with the consideration of the offence(s), the opinion that the detenu ought to be detained, the reasons for the opinion

The Court explains that the right to be supplied copies of relevant documents flows as a corollary to the right to make a representation against the detention.

"If the grounds of detention, as above, were not furnished to the detenu within the time permitted under the law, the continued detention of the detenu would be illegal and void", the Court says in this respect.

Relying on the Supreme Court's dictum in Amratlal Prajivandas, the Court points out that the gravity and nature of the detenu's act can be understood only after the detaining authority applies his mind. This application of mind is evidenced by the reasons furnished, the Court goes on to say.

"That though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organized act or manifestation of organized activity. The gravity and nature of the act is also relevant and the test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That inference by the detaining authority can be arrived at only after an application of mind as to the nature of the act, which exercise must be apparent from the reasons furnished by him for his decision."

The 'subjective satisfaction' of the detaining authority cannot be absolute – has to be backed by reasons and is amenable to judicial reveiew

On the question of subjective satisfaction, the judgment reads,

"While the statute may express the confidence of the legislature in an authority entrusted with the power to detain a citizen, the principles integral to the rule of law that inform the exercise of judicial review recognise that the subjective satisfaction of the detaining authority cannot be absolute."

Again, while noting that a detaining authority was required to record satisfaction of reasons available to detain a person, the Court lays stress on the reasons that have to be furnished in support of the 'satisfaction' so as to legitimise the detention order.

"The detaining authority cannot merely state that he is satisfied that the person is required to be detained; he must go further and state the reasons why he came to be so satisfied on the basis of the material available and scrutinized by him. The supply of reasons is what clothes his 'subjective satisfaction' with the legitimacy that is required of action designed to deprive a person of his/her fundamental right to personal liberty. In its absence, the detenu does not get an effective right of representation against the detention, or an opportunity to show that there were no valid reasons to support the same", the Bench elaborates.

As an offshoot of this, the Bench holds that the subjective satisfaction of the detaining authority was amenable to judicial review in a habeas corpus petition. When not based on relevant material or not based on reason, the detention order can be set aside, the Court stated. For this the Court would ascertain the existence of relevant material, whether such material was considered, and reasons for subjective satisfaction, and compliance with safeguards against detention.

"This (judicial review) is not to say that the court would substitute its opinion for that of the detaining authority or objectively assess the material considered by the said authority. The court would only ascertain as to whether any relevant material existed, on the basis of which the detaining authority could have arrived at his subjective satisfaction through a proper application of mind to the said material", the Court states.

The effect of delay on the detention order

An unexplained delay at any stage, the Court explains, vitiates the detention order and entitles a detenu to immediate release.

The delays at any stage, be it at the time the detention order is passed, executed or even when the detenu's representations against the order is presented and considered, would vitiate the detention order. It is therefore for the authority concerned to explain the delay, if any, in disposing the representation, the judgment emphasizes.

In that process, it is not enough to say that the delay was very short, the Court states. The test is not the duration of delay, but how it is explained by the authority concerned that is of importance, it was added.

At this juncture, the Court inserted a rider stating that a detenu could not use 'delay' to challenge the detention order when he/she contributed to the delay by evading arrest.

How is a representation against preventive detention is to be made

Laying emphasis upon the proposition that the constitutional right to make a representation under Article 22 (5) guarantees the constitutional right to a proper consideration of the representation.

The detaining authority, the appropriate government as well as the advisory board are to independently consider the representation of the detenu, the Court said. Distinguishing how the government and the advisory board was to consider any representation against a detention order the Court posited,

Government considers whether the detention order is in conformity with the power under the law. The board, considers the representation and the case of the detenu to examine whether there is sufficient cause for the detention.

"In that sense, the consideration by the board is an additional safeguard and not a substitute for consideration of the representation by the Government," the Court explained.

Following a discussion of the principles, the Court applied these to the facts of the habeas corpus pleas before it.

The lead case was dismissed with the Court holding that the detenu's act contributed to delay in executing the detention order. The other two connected petitions were allowed on the ground that sufficient reasons for the detention were not provided.

Prior to closing its pronouncement, the Court recordS its appreciation to the counsel for their assistance.

CASE: Wahida Ashraf v. Union of India and allied cases

COUNSEL: Advocate P.A. Augustian, Advocate M.Ajay for the petitioners, Central Government Counsel Jaishankar V. Nair, Suvin R. Menon, Daya Sindhu Sreehari, Government Pleader K.A. Anas, Advocate S. Manu for the Directorate of Revenue Intelligence

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