COFEPOSA : Advisory Board Opinions Cannot Be Subject Matter Of Judicial Review, Reiterates SC [Read Judgment]

The opinion of the Advisory Board given by it pursuant to a reference made to it under Section 8(b) of the COFEPOSA cannot be subject matter of review or scrutiny by the judicial courts/tribunals, the Supreme Court has reiterated.

The bench comprising Justice Uday Umesh Lalit and Justice R. Subhash Reddy dismissed a special leave petition filed by Union of India against an Opinion of the Advisory Board constituted under Section 8(a) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. In this case [Union of India vs. Nisar Pallathukadavil Aliyar], the Advisory Board had opined that there is no sufficient cause for the continued detention of the above named detune under Section 3 of COFEPOSA.

The Court rejected the contention made by the Additional Solicitor General that, if the opinion of the Advisory Board were to the effect that there was no sufficient cause for the detention of the person concerned, the challenge was still available to the appropriate government and the capacity of the Advisory Board while rendering such opinion would be that of a Tribunal and therefore the opinion could be subject matter of a challenge.

Referring to various judgments on the subject, the bench said:

According to the aforesaid decisions the nature of opinion given by the Advisory Board is neither judicial nor quasi judicial; that it would be erroneous and unsafe to treat the opinion expressed by the Advisory Board as amounting to a judgment of a criminal court; that the Advisory Board does not try the question about the propriety or validity of the citizen's detention as a court of law would, but, its function is limited. As stated in Akshoy Kona , the opinion is merely intended to assist the government and it is binding on the appropriate government only if it favours the detenu and not when it goes against him. It was laid down in said decision that the opinion of the Advisory Board cannot be subject matter of review or scrutiny by the judicial courts/tribunals. The element of confidentiality was also taken note of and it was observed that the Advisory Board opinion is never intended to be open to challenge on the merits before any tribunal.

Though the bench noted that wherever a body is exercising judicial/quasi judicial power and is a tribunal within the meaning of the expressions in Article 136 and 227 of the Constitution, the decisions so rendered are amenable to challenge, it added:

But the basic issue in the present matter is the nature of power exercised by the Advisory Board when an opinion is given by it pursuant to a reference made to it under Section 8(b) of the COFEPOSA Act. The report of the Advisory Board, excepting its opinion, is strictly confidential and the nature of the power so exercised by the Advisory Board in giving its report and the opinion, has already been pronounced upon by this Court in the cases referred to above viz. Dharam Singh Rathi , Akshoy Konai , A.K. Roy and Calcutta Dock Labour Board. 

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