IMPORTANT POINT
RTI Act is not applicable to preventive detention.

JUDGMENT

Altamas Kabir, J.-These Special Leave Petitions and Writ Petitions are all directed against orders of preventive detention at the pre-execution stage. During the course of hearing, it was submitted on behalf of some of the Petitioners that the decision rendered in Addl. Secretary, Govt. of India vs. Alka Subhash Gadia1 [(1992) Supp. (1) SCC 496] that a preventive detention order could be challenged at the pre-execution stage on the five grounds enumerated in the judgment, was no longer good law on account of the subsequent enactment of the Right to Information Act, 2005, hereinafter referred to as the “R.T.I. Act”, which came into force on 15th June, 2005. A connected question which was raised was whether the aforesaid decision in Alka Subhash Gadia’s case (supra) was per incuriam, since it did not have the occasion to notice subsequent decisions on the same question. Another question which was raised was whether the five instances indicated in Alka Subhash Gadia’s case (supra), under which a detention order could be challenged at the pre-execution stage, was exhaustive or whether they were only illustrative.

2. Since a decision on the points raised could effectively decide the matters without going into factual details, it was decided to decide the said questions as preliminary issues, before going into the matters on merit.

3. Appearing on behalf of some of the Petitioners, Mr. Mukul Rohatgi, learned Senior Advocate, urged that the five exceptions laid down in Alka Subhash Gadia’s case (supra) were not exhaustive, but only illustrative, as was held by this Court in Deepak Bajaj vs. State of Maharashtra2 [(2008) 16 SCC 14]. Mr. Rohatgi submitted that it was well settled that the power of judicial review vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution, is part of the basic structure of the Constitution and it was inconceivable that such power of judicial review could be restricted by amending the Constitution or by a judicial pronouncement.

4. Mr. Rohatgi contended that since Article 32 was included in Part III of the Constitution and was in itself a fundamental right, the exercise of jurisdiction thereunder by this Court could not be affected and/or restricted by the decision rendered in Alka Subhash Gadia’s case (supra). Learned counsel urged that it was also inconceivable that by a judicial pronouncement, the jurisdiction of this Court to interfere with detention orders at a pre-execution stage only could be restricted to the five exceptions mentioned in Alka Subhash Gadia’s case (supra) only, for all times to come.

5. Tracing the history of the powers exercised by this Court under Article 32 of the Constitution, Mr. Rohatgi firstly referred to the decision rendered by this Court in the case of Romesh Thappar vs. State of Madras3 [(1950) SCR 594], wherein it was observed that Article 32 provides a guaranteed remedy for the enforcement of the rights under Part III of the Constitution and this remedial right has itself been made a fundamental right by being included in Part III. Mr. Rohatgi then referred to the decision of this Court in D.A.V. College vs. State of Punjab4 [(1972) 2 SCC 269], wherein in paragraph 44, this Court observed that it was immaterial as to whether any fundamental right has been threatened or violated. So long as a prima facie case of such threat and violation was made out, a petition under Article 32 has to be entertained.

6. Various other judgments were also referred to by Mr. Rohatgi, of which it will be worthwhile to refer to the decision of this Court in Haradhan Saha vs. State of West Bengal5 [(1975) 3 SCC 198], Olga Tellis & Ors. vs. Bombay Municipal Corporation6 [(1985) 3 SCC 545] and K.K. Kochunni vs. State of Madras7 [(1959) Supp. (2) SCR 316]. All these judgments have held that judicial review of administrative action, even when fundamental rights are threatened, is permitted on grounds of relevance, reasonableness, necessity,