1. Detention under Section 3(3) of the National Security Act, 1980 — Refusal by detaining authority to forward a subsequent representation to the Central Government for revocation. (Para 1 )
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1998 Supreme(SC) 426
1998(3) Supreme 367
Supreme Court of India
(Under Article 32 of the Constitution)
M.K. Mukherjee and S.S. Mohammed Quadri, JJ.
Smt. Prem Lata Sharma -Petitioner
versus
District Magistrate, Mathura & Ors. -Respondents
Writ Petition (Criminal) No. 290 of 1997
Decided on 31-3-1998
Counsel for the Parties :
For the Petitioner : K.B. Sinha, Sr. Advocate, Ashok Sharma, Advocate.
For the Respondents : R.K. Singh, A.S. Pundir, Advocates.
Important Points
Important Point
The detenu has a right to make a representation to the Central Government, independent of the representation he made to the State Government, to pursuade the former to invoke its power of revocation of the detention order u/s. 14 of National Security Act, 1980 and there is no period of limitation regarding exercise of this right.
The detenu has a right to make a representation to the Central Government, independent of the representation he made to the State Government, to pursuade the former to invoke its power of revocation of the detention order u/s. 14 of National Security Act, 1980 and there is no period of limitation regarding exercise of this right.
Subject
Detention - Habeas Corpus
Act Referred
Headnote
National Security Act, 1980-Section 3(3)-Detention order under-Constitution of India-Articles 21, 22(5) and 32-Detenu’s right to make a representation to Central Government-Denied on ground of delay and limitation of time-Whether correct ? (No)-Result-Denial of right under Art. 22(5) entitling release forthwith. (National Security Act, 1980, Section 14).
Held : In our considered view the above stand of the detaining authority is wholly untenable: firstly, because in its letter dated August 26, 1997 the reason given by the detaining authority (mentioned earlier) for not sending the representation to the Central Government was different; secondly, because no Rules referred to in that letter were brought to our notice; thirdly, because there is no - nor can there be - a period of limitation regarding exercise of a right of a detenu to make a representation and the corresponding obligation of the Central Government to consider the same for deciding upon the question of revocation of the order of detention, for such right and obligation subsist so long as the detention continues; and lastly, because when the representation was made to the Central Government it was for it - and not for the detaining authority - to decide whether the representation should be rejected on the ground that his earlier representation had already been considered and rejected. To put it differently, when the representation was addressed to the Central Government it was incumbent on the part of the detaining authority to forward the same to the Central Government and not to take a pre-emptive action thereupon of its own. (Para 4)
For the foregoing discussion, it must be held that refusal on the part of the detaining authority to send the representation of the detenu to the Central Government resulted in denial of the right conferred on him under Article 22(5) of the Constitution of India to pursuade that Government to revoke the order of detention under Section 14 of the Act and on that ground his continued detention has become illegal. We, therefore, allow this petition, quash the impugned order of detention and direct that the detenu be released forthwith unless wanted in connection with any other case. (Para 5)
Legal Category Hierarchy
Table of Contents
2. Right of detenu to make independent representations to the Central Government for revocation under Section 14 of the Act versus the authority's right to refuse belated representations. (Para 2 , 3 )
3. Detaining authority cannot pre-emptively reject representations addressed to the Central Government, nor can it impose a limitation period on the right to seek revocation. (Para 4 )
4. The right of a detenu to make a representation for revocation of a detention order under Article 22(5) of the Constitution subsists as long as the detention continues. (Para 4 , 5 )
5. Petition allowed — Detention order quashed — Detenu ordered to be released. (Para 5 )
6. Is there a limitation period for a detenu to make a representation to the Central Government for revocation of a detention order?
No. There is no period of limitation regarding the exercise of a detenu's right to make a representation or the Central Government's obligation to consider it; such rights and obligations subsist as long as the detention continues. (Para 4 )
7. Can a detaining authority refuse to forward a representation addressed to the Central Government on the grounds that a previous representation was already rejected?
No. When a representation is addressed to the Central Government, the detaining authority must forward it. It is for the Central Government, not the detaining authority, to decide if the representation should be rejected based on prior considerations. (Para 4 )
8. What is the constitutional basis for the right to make a representation against a detention order?
The right to persuade the Government to revoke a detention order is conferred under Article 22(5) of the Constitution of India. (Para 5 )
Order
Pursuant to an order dated April 26, 1997 made by the District Magistrate, Mathura (hereinafter referred to ‘the detaining authority’) in exercise of his powers under Section 3(3) of the National Security Act, 1980 (‘Act’ for short), Suresh Chander Sharma, a resident of Alwar Kunj in the city of Vrindavan, has been detained since May 5, 1997 with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Against his dentention he made a representation to the State Government on May 14, 1997 which was rejected on May 23, 1997. A copy of the said representation, along with para-wise comments, was forwarded by the State Government on May 21, 1997 to the Home Secretary, Government of India, New Delhi for consideration. The Central Government also rejected the representation of the detenu on August 6, 1997. Thereafter, on August 22, 1997 the detenu made a representation to the Home Secretary, Government of India, through the Superintendent of Mathura Jail, where he is confined. By its letter dated August 26, 1997 the detaining authority informed the detenu that the representation could not be sent to the Central Government as it was made after extraordinary delay. The detaining authority pointed out that according to the Rules the said representation should have been made within three weeks from the date of his detention. Thereafter, the petitioner, who happens to be wife of the detenu, filed this petition seeking a writ of Habeas Corpus.
2. The only point that has been urged in support of this petition is that the detenu has a right to make a representation to the Central Government, independent of the representation he made to the State Government, to pursuade the former to invoke its powers of revocation of the detention order under Section 14 of the Act and that by refusing to send the representation to the Central Government the detaining authority has deprived him of his such right.
3. In repudiating the above contention the detaining authority relied upon the following averments made in its supplementary counter affidavit :
“That the copy of the representation dated 14.5.1997 was already forwarded for consideration to the Central Government by the State Government, which representation was considered and rejected by the Central Government. The said Detenue addressed a second representation dated 22.8.1997 to the Secretary, Home, Govt. of India, New Delhi, since the earlier representation was already considered and rejected by the Central Government on 6.8.1997. The communication about which was already made to the said detenue through the Radiogram dated 6.8.1997 from the Ministry of Home Affairs, New Delhi served upon the detenue through the Superintendent, District Jail, Mathura. Under the circumstances it was not considered proper to forward the subsequent belated representation made after four months of the passing of the detention order. The detenue was accordingly informed vide letter dated 26.8.1997 of the deponent.
4. In our considered view the above stand of the detaining authority is wholly untenable : firstly, because in its letter dated August 26, 1997 the reason given by the detaining authority (mentioned earlier) for not sending the representation to the Central Government was different; secondly, because no Rules referred to in that letter were brought to our notice; thirdly, because there is no - nor can there be - a period of limitation regarding exercise of a right of a detenu to make a representation and the corresponding obligation of the Central Government to consider the same for deciding upon the question of revocation of the order of detention, for such right and obligation subsist so long as the detention continues; and lastly, because when the representation was made to the Central Government it was for it - and not for the detaining authority - to decide whether the representation should be rejected on the ground that his earlier representation had alr
