Non-Communication Of 'Right To Make Representation Against Detention Order' Violates Constitutional Right: Madhya Pradesh High Court

The Indore Bench of the Madhya Pradesh High Court recently quashed a detention order on the ground that it did not contain a stipulation informing the detenue about his right to prefer a representation against his detention by the detaining authority.

A Division Bench of Justices Sujoy Paul and Anil Verma relied on a catena of judicial precedents to support their observations.

It was the petitioner's case that the detention order did not mention that a representation can be sought before the same authority, thereby violating a valuable right of the petitioner under Article 22 of the Constitution of India.

Advocate Vijay Shukla, appearing for the petitioner, argued the petitioner's case is squarely covered by the decision in Kamal Khare v. The State of Madhya Pradesh (2019) and Gurbachan Singh Saluja v. The State of Madhya Pradesh & Ors (2021).

It was admitted by the Additional Advocate General that the detention order does not contain any stipulation that the petitioner can challenge the impugned detention order before the same authority.

The High Court noted that in the Kamal Khare judgment, a full bench of the High Court had held that the omission of a stipulation to this effect results in infringement of a valuable right, thereby making the order liable to be set aside.

Similarly, in Kamleshkumar Ishwardas Patel v. Union of India (1995), it was held,

"The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recognized by Section 21 of the General Clauses Act, 1897 though it does not flow from it. It can, therefore, be said that Article 22(5) postulates that the person detained has a right to make a representation against the order of detention to the authority making the order. In addition, such a representation can be made to any other authority which is empowered by law to revoke the order of detention."

On the question of the effect of not informing the detenu that he has a right to make representation, the Constitutional Bench in Kamleshkumar Ishwardas Patel noted that Article 22(5) must be construed to mean that the person detained has a right to make representation against the order of detention. This representation can be made not only to the Advisory Board but also to the detaining authority and any other authority that is competent under law to revoke the order for detention and thereby give relief to the person detained. It was remarked that,

"The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation."

In another case of State of Maharashtra & Ors v. Santosh Shankar Acharya (2000), the Supreme Court held that noncommunication of the fact to the detenu that he could represent the detaining authority till the order of detention had not been approved by the State Government. In case the order of detention has been issued by the Officer other than the State Government would constitute an infringement of right guaranteed under Article 22(5) of the Constitution, the Court added.

Case Title: Lokendra Singh v. State of Madhya Pradesh & Ors. 

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