tition Nos 293391 and 392 of 1981
Under Article 32 of the Constitution 138 MM Abdul Khader and Shakeel Ahmed for the Petitioners
RK Bhatt D Goburdhan and Miss A Subhashini for the Respondents
The Judgment of the Court was delivered by CHINNAPPA REDDY J
These three Writ Petitions may be disposed of by a single judgment since the principal question argued in all the three cases is one
The question is whether delay in considering the representation made by a detenu under article 225 of the Constitution vitiates a detention under the National Security Act and entitles the detenu to be released on that ground alone
As a result of a series of decisions of this Court  it is now well settled that the representation made by a detenu under article 225 of the Constitution against his detention under the  must be considered by the detaining authority with the ut most expedition and that any unexplained delay in considering the representation will be fatal to the detention
The learned counsel for the State of Uttar Pradesh urged that the rule requiring expeditious consideration of a detenu s representation is a judge made rule based on provisions of the Conservation of Foreign Exchange and Prevention of the Smuggling Activities Act 1974 and that the extension of the application of the rule to cases of detention under the National security Act was unwarranted
The learned counsel contrasted the provisions of the National Security Act and the provisions of the Conservation of Foreign Exchange  Prevention of Smuggling Activities Act 1974 and urged that in the case of detention under the National Security Act a certain amount of delay was inevitable having due regard to the procedure prescribed by the Act and 139 therefore delay in consideration of the representation should not be allowed to prejudice the detention
We are unable to agree with the submission of the learned counsel
We will presently give our reasons for our inability to accept the learned counsel s submissions but we will first like to refer to a few facts
In Writ Petition Criminal No 293 of 1981 the order and the grounds of detention were served on the detenu on October 30 1980 and November 12 1980 respectively
The detenu made a representation on November 12 1980
Though according to the detenu he has received no communication from the Government about his representation the Additional District Magistrate has stated in his counter affidavit that the representation was rejected on December 9 1980 and that it was communicated to the detenu through the Superintendent of the Central Jail
The counter affidavit mentions not a word to explain the delay in considering the representation
The only reference to the representation in the counter affidavit is in these two sentences It is admitted that the detenu made a representation to the Home Secretary on November 12 1980 and the same was rejected on December 9 1980
The rejection of the representation was communicated to the detenu through Superintendent Central Jail by the Government
Similarly in Writ Petition Criminal No 391 of 1981 the order and the grounds of detention were served on the detenu on November 12 1980
The representation was rejected on December 10 1980
In the counter affidavit filed by the Section Officer Confidential Department of the Government of Uttar Pradesh it is stated that on receipt of the representation the Secretary  Home Department forwarded it to the District Magistrate for his comments
In order to meet the allegations in the representation the District Magistrate had to gather information from many sources and the representation alongwith his comments was returned to the Home Secretary by the District Magistrate on November 25 1980
Thereafter Law Department was consulted and the file could reach the Home Minister on December 5 1980 only
The representation was rejected by the Home Minister on December 8 1980 and then communicated to the detenu through the Superintendent Central Jail
In Writ Petition Criminal No 392 of 1981 the order and the grounds of detention were served on the detenu on October 16 1980
The detenu made a representation on October 24 1980
It was rejected on November 25 1980
The counter 140 affidavit filed by the Additional District Magistrate does not offer any explanation for the delay in the consideration of the representation
He has satisfied himself with the statement as regards the representation of the detenu to the Home Secretary this fact is admitted
 The question for consideration is whether a person preventively detained under the provisions of the National Security Act is entitled to be released if there is delay in the consideration of the representation made by him to the detaining authority
It is true that the series of cases where delay in the consideration of the representation made by a detenu was held to be fatal to detention were cases which arose under the 
We are however unable to see how that would make any difference
The right of detenu to have his representation considered at the earlier opportunity and the obligation of the detaining authority to consider the representation at the earliest opportunity are not a right and an obligation flowing from either the  or the National Security Act or for that matter any other Parliamentary of State law providing for preventive detention
They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law
article 225 enjoins a duty on the authority making the order of detention to afford the detenu the earliest opportunity of making a representation against the order
The right and obligation to make and to consider the representation at the earliest opportunity is a Constitutional imperative which cannot be curtailed or abridged
If the Parliament or the State legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter departmental consultative procedures are such that delay becomes inevitable the law and the procedures will contravene the constitutional mandate
It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus
It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable
The learned counsel for the State of Uttar Pradesh pointed out certain differences between the and the National Security Act which according to him make delay inevitable in 141 the consideration of representations in cases of detention under the National Security Act
We think that the differences pointed out are irrelevant
The constitutional mandate brooks no unreasonable delay in the consideration of a representation
In the cases before us in Criminal Writ Petition Nos 293 of 1981 and 392 of 1981 no explanation was offered by the detaining authority for the delay in the consideration of representations and in Criminal Writ Petition No 391 of 1981 administrative red tape was the only explanation offered
We are satisfied that in all the three cases there was unreasonable delay in the consideration of the representations and the detenus are therefore entitled to be released
They will be released forthwith
The Writ Petitions are allowed


Summary:
Allowing the appeals the Court  HELD 1 1
Article 22 5 of the Constitution enjoins a duty on the authority making the order of detention to afford the detenu the earliest opportunity of making a representation against the order
The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged
140 E 1 2
If the Parliament or the State Legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter departmental consultative procedures are such that delay becomes inevitable the law and the procedures will contravene the constitutional mandate
It is essential that any law providing for preventive detention and any authority obliged to make order for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus
It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable
The constitutional mandate brooks no unreasonable delay in the consideration of a representation
140 G 141A 1 4
The right of detenu to have his representation considered at the earliest opportunity and the obligation of the detaining authority to consider the representation at the earliest opportunity are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities 1974 or the National Security Act or for that matter any other Parliamentary or State law providing for preventive detention
They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law
140 D Jayanarayan Sukul vs State of West Bengal   Narendra Purshotam Umrao etc
vs BB Gujral and Ors1979 2 SCR 315 VJ Jain vs Pradhan   Smt
Ichhu Devi Choraria vs Union of India and Ors   Ramachandra A Kamat vs Union of India and Ors   Frances Coralie Mullin vs W C Khambra and Ors   referred to