The detenue has the right to make representation to the detaining authority in addition to the right to file representation to the appropriate Government, as guaranteed under Article 22(5) of the Constitution.

B. Sudershan Reddy, C.J.

If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought - not free thought for those who agree with us but freedom for the thought that we hate. - Justice Oliver Wendell Homes in his Immortal Dissent in U.S. v. Schwimmer 279 U.S. 664 .

Prologue

1. When the Supreme Court revisited the question whether an officer especially empowered to pass order for preventive detention is required to consider the representation submitted by the detenue in Kamlesh Kumar Ishwardas Patel v. Union of India and Ors. which is considered to be a comprehensive work of learning, it was perceived to have provided final solution to the problem arising in that regard. The significant progress has been made on both constitutional and philosophical fronts, as various issues have been significantly clarified and diverse position given to cogent articulation, yet the debate over interpretation of Article 22(5) has recently been intensified, with advocates and foes bitterly divided as ever,

2. The debate on protection of life and liberty a4nd protection against arrest and detention involves complex and sensitive issues. No doubt a great deal has already been said much of it on merit and on point. That occasion has arisen once again and the issue is presented for consideration before the Court vested with the power of judicial review. The modern activist State is a concomitant of the complexity of modern society ; it is inevitably with us. We must meet the challenge rather than see it was not before us.

3. One of the most treasured liberties provided in the Constitution and perhaps the liberty that sets the Indian apart from many third world countries, is equality before law and equal protection of laws ; protection of life and personal liberty and protection against arrest and detention. The principle is enshrined in the trinity of Articles 14, 21 and 22 of the Constitution. Liberty is not amorphous concept that exist in the minds of dreamers and scholars but a real significant liberty effecting our everyday life as citizens of this great country. There have been times in our history when liberties, although sought, were not realized by all citizens. Liberty forms an important component of part of justice which all political systems governed by Rule of law and constitutionalism, aspire to secure. It is an essential and indispensable ingredient of Government of laws. If the Constitution is the embodiment of our aspirations, it must have become so very largely because of those three articles. Each is a protection with centuries of history behind it after dearly brought with the blood and lives of people determined to prevent oppression of their rulers. Ours is a Government of laws and not of men.

4. In a Government of law existence of the Government will be imperilled if it fails to observe the laws scrupulously. This principle was artfully enunciated by Justice Louis D. Brandeis almost seventy years ago. To quote : "Government is the patent, omnipresent teacher. For good or ill, it teaches the whole people by its example. If the government becomes a law-breaker, it breeds contempt for the law ; it invites every man to become a law unto himself; it invites anarchy". [See Olmstead v. US277 U.S. 438 (1928)]

5. We saw in the past what happens when the State bends the law to its own ends and now, in the new era of constitutionality, we may be tempted to use questionable measures in the war against crime. "The lesson becomes particularly important when dealing with those who aim to destroy the system of government through law by means of organized violence. The legitimacy of the constitutional order is undermined rather than reinforced when the State acts unlawfully" (see Mohammed v. President of the Republic of South Africa 2001 (3) S.A. 893.

6. The United States Supreme Court while upholding the right of aliens detained outside the sovereign territory of