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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K.JAYASANKARAN NAMBIAR, GOPINATH P., JJ.
Waheeda Ashraf, W/o. Asharf Cot - Appellant
Versus
The Union of India - Respondent
W.P.(Crl)Nos.255, 279, 280 of 2020
Decided on : 08-04-2021
COFEPOSA Act – Section 3 – Maintenance of Internal Security Act, 1971 – Constitution of India, 1950 – Art. 22(5) – Detention – Claim for restoration – Whether there was a significant lapse of time between the last prejudicial act of the detenu and the order of detention passed in relation to him? An unexplained delay in passing the order of detention would cast doubts on the genuineness of the subjective satisfaction of the detaining authority that informed the order of detention. – Whether there was any significant and unexplained delay in the execution of the detention order through an arrest of the detenu? An unexplained delay would suggest that the detaining authority was not serious in implementing the detention order and consequently, that there was no perceived need to detain the detenu. – Whether the grounds of detention were served on the detenu within the time permitted under Art. 22(5) of our Constitution read with the provisions of the COFEPOSA Act? – Whether the communication of the grounds of detention, in terms of Art.22 (5) of our Constitution, was complete in all respects and included copies of all material relied upon by the detaining authority while passing the detention order? –Whether the communication of the grounds of detention were sufficient to enable the detenu to submit his representation against the detention before the detaining authority, appropriate government and the advisory board? – Whether the representation of the detenu was considered expeditiously and without delay by the authorities concerned? Any unexplained delay in consideration of the representation would vitiate the detention order itself and entitle the detenu to an immediate release from custody. –Whether the subjective satisfaction of the detaining authority, as regards the need for detention, was based on relevant material and contained reasons that would demonstrate an application of mind by the said authority
Finding of the court: It is settled that the law frowns only upon unexplained delay. – Law surely allows reasonable time to the authorities. – As held in K.M.Abdulla Kunhi (supra) there should not be “supine indifference/slackness or callous attitude” in considering the representation. – In the facts and circumstances of these cases, Court find that there is absolutely no delay in the disposal of the various representations detailed above. – Contention that the failure of the Central Government to consider the requests made for information, immediately after the grounds of detention were served on the detenus, and independently of the detaining authority vitiates the order of detention is only to be rejected. Abdulla Kunhi (supra) on which considerable reliance has been placed to buttress this contention certainly does not hold so. – It is true that in Abdulla Kunhi (supra) and in Raziya v. State of Kerala, (2004) 2 SCC 621 which is the other decision relied upon to further this contention, it has been held that the right to make a representation to the advisory board and to the central government are distinct and independent rights and the opinion of the advisory board need not detain the government from exercising its power to revoke an order of detention. – While this proposition cannot be doubted, it does not appear to us that the decision lays down a proposition that whenever request for information is made by the detenue to the detaining authority, the central government must independently consider that request. – Court therefore have no hesitation to reject this contention of the learned counsel for the petitioners. – W.P (Crl.) fails and will stand dismissed; subject however to the condition that the detention shall run for a period of one year from 12-07-2020 and not from 22-07-2020 as stated in Ext.P11 order. – W.P (Crl.) will stand allowed, and the detenus, Sri. Faisal Kudilattummal and Sri.Abdussameem are forthwith set at liberty.
Result: Petitions Disposed Of
JUDGMENT :
A.K.Jayasankaran Nambiar & Gopinath.P., JJ
Vivian Bose. J. in Ram Singh v. State of Delhi, AIR 1951 SC 270
We are in these writ petitions concerned with the personal liberty of detenues under the COFEPOSA Act. Their relatives have come forth with these petitions seeking their immediate release through the issuance of a writ of Habeas Corpus. Inasmuch as the learned counsel for the petitioners as well as the respondents advanced lengthy arguments before us, we have thought it apposite to first draw out the contours, and explain the nature, of the jurisdiction that we exercise in such matters, before proceeding to examine the facts of the individual cases.
The concept of Liberty:
2. The English philosopher John Stuart Mill considered a society in which liberties were not respected as one that, irrespective of the form of its governance, was never free. For him a free society was one where liberty existed as an absolute and unqualified concept. Liberty comprised essentially of three components viz. (i) liberty of thought and expression - the freedom to express your ideas and beliefs; (ii) liberty of tastes and pursuits - the freedom to do what one wants without any obstruction from fellow citizens so long as it did not harm them and (iii) liberty of combination of individuals - the freedom to unite for any purpose not involving harm to others. The worth of a State lay in the worth of the individuals composing it and accordingly, a free State was one where the collective liberties of its citizens were duly recognised and respected.
Liberty under our Constitution:
3. Our Constitution recognises the concept of Liberty - of thought, expression, belief, faith and worship. This is borne out in its Preamble. In order to understand the true sense in which the concept of liberty was perceived by the framers of our Constitution, we have to first understand the nature of the Constitution itself. As observed by Granville Austin,[Granville Austin, The Indian Constitution; Cornerstone of a Nation], “The Indian Constitution is first and foremost a social document for majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement. The core of the commitment to social revolution lies in Parts III and IV, in the fundamental rights and in the Directive Principles of State Policy. Together, they constitute the Conscience of the Constitution. The provisions of Part III and IV have their roots deep in the struggle for independence and they were
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