1. Detention under Rule 30(1)(b), Defence of India Rules, 1962 — Review under Rule 30A — Dispute over legality of detention following change in judicial interpretation of review procedure. (Para 1 )
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1967 Supreme(SC) 219
SUPREME COURT OF INDIA
K.N. WANCHOO, C.J.I., R.S. BACHAWAT, V. RAMASWAMI, G.K. MITTER AND K.S. HEGDE, JJ.
1.Jagdev Singh (In W. P. No. 69 of 1967)
2. Sardar Singh (In W. P. No. 71 of 1987), Petitioners
Versus
State of J. and K.(In both the Petitions), Respondents.
Writ Petns. Nos. 69 and 71 of 1967,
D/-14-8-1967.
Advocates Appeared
Mr. R. V. S. Mani, Advocate, amicus curiae for Petitioners (In both the Petns.); M/s. R. H. Dhebar, R. Gopalakrishnan and S. P. Nayar, Advocates, for Respondents (In both the Petitions).
Advocates:
R.GOPAL KRISHNAN, R.H.Dhebar, R.V.S.Mani, S.P.NAIR
R.GOPAL KRISHNAN, R.H.Dhebar, R.V.S.Mani, S.P.NAIR
Mandatory review of detention orders must be quasi-judicial; failure to do so renders detention illegal after six months. However, the government may issue a fresh detention order on the same facts to cure technical defects, provided it is not a mala fide attempt to circumvent the law.
Headnote:(A) Constitution of India - Article 32; Defence of India Rules, 1962 - Rule 30(1)(b) and Rule 30A - Detention and Review - Mandatory nature of review under Rule 30A - If a review is not conducted within six months or is not in accordance with the law, specifically failing to follow a quasi-judicial approach and the rules of natural justice, the original detention order falls after the first six-month period, and the detention becomes illegal. A subsequent review cannot continue an order that has already fallen due to the absence of proper prior reviews. (Para 4)
(B) Defence of India Act and Rules - Fresh order of detention - Power of the government to pass a fresh order of detention on the same facts if the earlier order or its continuance is held to be defective for technical reasons - Such an action is not considered mala fide if it is intended to cure a defect, particularly in the context of emergency legislation, provided it is not a device to circumvent the mandatory review process. (Paras 6, 8)
Facts of the case:
Petitioners were detained under emergency rules. Periodic reviews were conducted to continue the detention, but these reviews were performed without providing the petitioners an opportunity to represent their cases, based on a legal interpretation that a judicial approach was not required. Subsequently, a higher court ruling established that the review function was quasi-judicial and required compliance with natural justice. Following this, the government conducted another review with a hearing and ordered the continuance of detention. The petitioners challenged the legality of their detention.
Findings of Court:
The court found that the mandatory provisions of Rule 30A, designed to protect personal liberty, were not complied with because the reviews between the first six months and the final review were not proper. Consequently, the original detention order expired after six months, and there was no valid order in existence to be continued by the subsequent review. However, the court found that the government is not barred from issuing a fresh detention order on the same facts to rectify a technical defect, provided the exercise of power is not mala fide.
Issues: Whether a subsequent proper review can validate a period of illegal detention resulting from previous improper reviews, and whether the government can issue a fresh detention order on the same facts to cure a technical defect in the continuation of detention.
Ratio Decidendi: Rule 30A is a mandatory provision; failure to conduct a proper quasi-judicial review every six months results in the expiration of the original order, rendering subsequent "continuance" orders void. While a defective continuation cannot be cured by a later review, the government possesses the power to issue a fresh order on the same facts, provided such power is not exercised mala fide to circumvent statutory protections.
Result: Petitions allowed.
Legal Category Hierarchy
Table of Contents
2. Whether subsequent proper review cures previous improper reviews — Whether the State can issue fresh detention orders based on the same facts to rectify technical defects. (Para 2 , 3 )
3. Rule 30A review is mandatory every six months; failure to conduct a legally valid review causes the original detention order to lapse, rendering subsequent continuances void. (Para 4 )
4. Mandatory periodic reviews under Rule 30A must comply with natural justice; failure results in lapse of detention, though fresh non-mala fide orders on same facts are permissible. (Para 4 , 6 , 8 )
5. Writ petitions allowed and petitioners ordered released, with liberty granted to the State Government to pass fresh detention orders if necessary. (Para 9 )
6. What is the legal consequence if a mandatory review of a detention order under Rule 30A is not conducted or is not in accordance with law?
The provision for review every six months is mandatory. If the Government omits the review or conducts it improperly by failing to follow quasi-judicial procedures and natural justice, the original detention order falls after the first six-month period, and the detention becomes illegal. (Para 4 )
7. Can the government pass a fresh order of detention based on the same facts as a previous order that was revoked or held defective?
Yes, a fresh order of detention can be passed on the same facts provided the order is not vitiated by mala fides. This includes passing a fresh order to cure a technical defect in the previous order or its continuance. (Para 6 , 8 )
8. When does the issuance of fresh detention orders on the same facts constitute a mala fide exercise of power?
It is mala fide if the Government resorts to a series of fresh orders every six months specifically to circumvent the mandatory review provisions of Rule 30A and the protections afforded to citizens by those provisions. (Para 8 )
Judgement
WANCHOO, CJI. :-These two petitions under Article 32 of the Constitution raise common questions of law and will be dealt with together. The petitioners were detained under Rule 30 (1) (b), DEFENCE OF INDIA RULES , 1962 (hereinafter referred to as the Rules), under orders of the Government of Jammu and Kashmir in March, 1965. Their detention was continued from time to time after review under Rule 30 A. One of such reviews was made in February, 1967. At that time the scope of review was governed by judgment dated June 1, 1965 of Shah, 1. (Vacation Judge) in Sadhu Singh v. Delhi Administration , (1966) I SCR 243 In that case it was field that Rule 80A relating to review did not require a judicial approach to the question of continuance of detention. No opportunity therefore was given to the petitioners to represent their cases when the review was made in February 1967, and their detention was continued for a further period of six months. Then came the judgment of this Court in P. L. Lakhanpal v. Union of India , W. P. No. 258 of l966, D/- 7-3-1967 . That judgment overruled the decision of Shah, J. and held that the function of review under Rule 30 A was quasi judicial and therefore in exercising it, rules of natural justice had to be complied with. In view of his judgment what the respondent did was to hold another review in April 1967. At that time notice was given to the petitioners and they were given a hearing. Thereafter order was passed in each case on April 27, 1967 by which the State Government directed the continuance of the detention orders for a further period. In the meantime the present petitions had been filed on March 30, 1967 and were based on the judgment of this Court in Lakhanpal s case W. P. No. 258 of 1966, D/- 7-3-1967
2. It is not disputed on behalf of the respondent that Lakhanpal s case W. P. No. 258 of 1956, D/- 7-3-1967 will apply to the present petitions and the petitioners will be entitled to release because the procedure of a quasi judicial tribunal was not followed when earlier reviews were made from August, l965 to February, 1967. Reliance is however placed on behalf of the respondent on the review made in April, 1967 and it is urged that that review was in accordance with the view taken by this Court in Lakhanpal s case, W. P. No. 258 of 1966, D/- 7-3-1967 and therefore continuance of detention thereafter is justified. Further it is urged that even if this contention is not correct the State Government has power to pass a fresh order of detention on the same facts, and even if we allow the present petitions, we should make it clear that the State Government has such power. It is urged in this connection that the judgment of Bhargava, J: in Avtar Singh v. State of Jammu and Kashmir , W. P.s. Nos. 68, 70, 79, 89 and 92 of 1967, D/- 9-6-67 is not correct.
3. The first question therefore is whether the orders of review dated April 27, 1967 are sufficient for the continuance of detention, even though the earlier orders of review passed from August, 1965 to February, 1967 were not properly made in view of the judgment of this Court in Lakhanpal s case, W. P. No. 258/66, D/-7-3-67 . Reliance in this connection is placed on the judgment of this Court in A. K. Gopalan v. Government of India , (1966) 2 SCR 427 In that case it was held that "it is well settled that in dealing with a petition for habeas corpus the court has to see whether the detention on the date on which the application is made is legal if nothing more has intervened between the date of the application and the date of hearing." So it is urged for the respondent that as the order passed on review under Rule 30A continuing detention on April 27, 1967 was in accordance with the judgment of Lakhanpal s case, W. P. No. 258/66, D/- 7-3-67 the earlier orders of review made between August, 1965 and February, 1967 which were improper made no difference.
4. We cannot accept this contention. In Gopalan s case, (1966) 2 SCR 427 what had happen
