etition Criminal No 4975 of 1981
Under Article 32 of the Constitution Kapil Sibal Ramesh C Pathak Subhash Sharma
R K Khinria and RK Handa for the Petitioner
OP Sharma and M section Dhillon for the Respondent
The Judgment of the Court was delivered by SEN J
This is a petition under article 32 of the Constitution by one Nand Lal Bajaj for the issuance of a writ of habeas corpus for the release of his son Inderjit  Billa who has been detained by an order of detention passed by the District Magistrate Ropar under section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980 hereinafter called the Act  on being satisfied that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the life of the community
Various grounds have been taken challenging the validity of the order of detention but it is not necessary for us to deal with them all as the view that we take on one of them is sufficient to dispose of the petition
The main contention is that the procedure adopted by the Advisory Board in allowing legal assistance to the State and denying such assistance to the detenu was both arbitrary and unreasonable and thus violative of article 21 read with article 14 of the Constitution
First as to the facts
On June 1 1981 the District Magistrate passed an order of detention under sub section
2 of section 3 of the Act on 721 being satisfied that detention of Inderjit was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community and as required by sub section
3 thereof made a report forthwith to the State Government together with the grounds on which the order of detention had been made and the State Government approved of the same
The detenu was apprehended on June 11 1981 and served with the order of detention together with the grounds and in due course the detenu submitted his representation challenging the order of detention to the State Government
He made a request in writing that he be allowed the assistance of counsel during the hearing before the Advisory Board but the Government did not accede to his request
However
it appears that the detaining authority was represented by the State counsel at the hearing
The detenu thereupon asked the Advisory Board that he may also be afforded an opportunity for legal assistance
What transpired before the Advisory Board can best be stated in the words of the petitioner
The relevant averment in para 17 of the petition is as follows Before the commencement of these proceedings the detenu requested the State Government in writing that he be allowed assistance of counsel during the course of the proceedings before the Advisory Board
The said request was denied
The detenu to his utter surprise found that there he had to place his case before the Advisory Board without assistance of Counsel the order of detention was defended by State Counsel
The lawyers representing the State during the course of the proceedings before the Advisory Board included the District Attorney and the Additional District Attorney who were assisted by the District Legal Advisor and one legal assistant
The detenu had also requested to Advisory Board verbally that he be allowed the assistance of counsel during the course of the proceedings emphasis added In answer to the rule nisi the District Magistrate Ropar who is the detaining authority has filed a counter affidavit by which he ex plained the circumstances which led to the issue of the detention order
In reply to para 17 of the petition it is averred In reply to para 17 of the petition it is stated that section 114 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 722 1980 prohibited the assistance of a lawyer to the detenu before the proceedings of Advisory Board which are confidential
However the Advisory Board is competent to call any information from the appropriate Govt
as laid in section 111 of the Act
It is thus manifest that there was no traverse of the specific allegation made by the petitioner that while the Advisory Board allowed legal assistance to the detaining authority there was denial of such an opportunity to the detenu
In substance the District Magistrate does not deal with the facts but states the law
Despite the order of this Court for the production of the file containing the proceedings of the Advisory Board all that was shown to us was the report of the Advisory Board
We were in formed that the record was not with the State Government but with the Board
It was represented that the Advisory Board does not forward its records because they are confidential
In the absence of  the record there is no other alternative but to proceed on the allegations made by the petitioner
The report of the Board does indicate that the Public Prosecutor who was present was questioned on one of the aspects of the matter
It also records the presence of two Additional District Attorneys
It is argued on behalf of the State that under sub section
4 of section 11 of the Act the detenu was not entitled to any legal assistance before the Advisory Board
The submission is that the proceedings of the Board and its report except that part of the report in which the opinion of the Board is expressed are confidential
Therefore lawyers have no place in the proceedings before the Advisory Board
It is further argued that the Advisory Board is entitled to devise its own procedure
Our attention was drawn to sub section
I of section 11 of the Act and it is urged that the Advisory Board is entitled not only to look into the record and see whether there was any material on which the order of detention could be passed under section 3 of the Act but may also call for any such further information as it may deem necessary
Sub sections
I of the Act on which reliance has been placed by the State are as follows 11
1 The Advisory Board shall after considering the materials placed before it and after calling for such further information as it may deem necessary from the appropriate 723 Government or from any person called for the purpose through the appropriate Government or from the person concerned and if in any particular case it considers it essential so to do or if the person concerned desires to be heard after hearing him in person submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned
4 Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceeding of the Advisory Board and its report excepting that part of the report in which the opinion of the Advisory Board is specified shall be confidential
Under article 223 b of the Constitution the right to consult and be defended by a legal practitioner of his choice is denied to any person who is arrested or detained under any law providing for preventive detention
Sub section
4 of section 11 of the Act is undoubtedly in conformity with article 223 b of the Constitution
Normally lawyers have no place in the proceedings before the Advisory Board
The functions of the Advisory Board are purely consultative
It is an independent body constituted under section 9 of the Act consisting of a silting Judge as the Chairman and not less than two other members who may be sitting or retired judges of the High Court
It is expected that the Advisory Board would act in a fair and impartial manner in making a report whether or not there is in its opinion sufficient cause for the detention of a person
In coming to that conclusion the Board has to make an objective determination on the question as to whether there was sufficient material on which the subjective satisfaction of the detaining authority could be based
Under sub section
I of section 11 of the Act the Board is not only entitled to look into the record and see whether there was any material on which the order of detention could be passed under section 3 of the Act but may also call for such further information as it may deem necessary from the appropriate Government or from the person concerned and if in any particular case it considers essential to do so or if the person concerned desires to be heard shall hear him in person
The Board is entitled to devise its own procedure
It is the arbitrariness of the procedure adopted by the Advisory Board that vitiates the impugned order of detention
There is no 724 denying the fact that while the Advisory Board disallowed the detenu s request for legal assistance it allowed the detaining authority to be represented by counsel
It appears that the Advisory Board blindly applied the provisions of sub section 4 of section 11 of the Act to the case of the detenu failing lo appreciate that it could not allow legal assistance to the detaining authority and deny the same to the detenu
The Advisory Board is expected to act in a manner which is just and fair to both the parties
The report of the Board placed before us shows that the detenu exercised his right to recall some of the witnesses for the purpose of cross examination We are informed that the hearing before the Advisory Board went on for 4 to 5 days and there were as many as 11 witnesses cross examined by the detenu
It cannot be as is suggested by the counsel for the State that the lawyers representing the State Government did not participate in the proceedings
On the contrary the report itself shows that the Public Prosecutor was called upon to explain some aspects of the case
If the matter was so intricate the Advisory Board should have ensured that both the parties had equal opportunity to place their respective cases
It appears that the dice was loaded against the detenu in that whereas he had to go without legal assistance the State Government had the benefit of an array of lawyers
The expression procedure established by law  in the context of deprivation of life and liberty under article 21 was interpreted in Maneka Gandhi vs Union of Indial and the interpretation so put has been treated as involving an enlargement of the right conferred by article 21 of the Constitution
As limited to the procedure the judges were agreed that the procedure must be reasonable and fair and not arbitrary or capricious
For if the procedure was arbitrary it would violate article 14 since article 14 is not consistent with any arbitrary power2 In interpreting the expression procedure established by law  in article 21 with reference to article 14 of the Constitution Bhagwati J observed3 We must reiterate here what was pointed out by the majority in EP Royappa v TN4 namely that from a positivistic point of view equality is antithetic to the rule of law in a republic while the other to the whim and caprice 725 of an absolute monarch
Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of article 14 
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment
The principle of reasonableness which legally as well as philosophically is an essential element of equality or non arbitrariness pervades Article 4 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14
It must be right and just and fair  and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied
Arbitrariness is the very antithesis of article 14
The principle of reasonableness is an essential element of equality and the procedure contemplated by article 21 must answer the test of reasonableness in order to be in conformity with article 14
Among the concurring opinions Krishna Iyer J although he generally agreed with Bhagwati J goes a step forward by observingl Procedural safeguards are the indispensable essence of liberty
In fact the history of procedural safeguards and the right to a hearing has a human right ring
In India because of poverty and illiteracy the people are unable to protect and defend their rights observance of fundamental rights is not regarded as good politics and their transgression as bad politics
In short the history of personal liberty is largely the history of procedural safeguards
The need for observance of procedural safeguards particularly in cases of deprivation of life and liberty is therefore of prime importance to the body politic
In Francis Coralie Mullin vs The Administrator Union Territory of Delhi and ors2 the inter relation between articles 21 and 14 of the Constitution was brought out by Bhagwati J in these words  The right of detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence 726 in a criminal proceeding but also for securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding civil or criminal is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable fair and just procedure established by a valid law
It is increasingly felt that in the context of deprivation of life and liberty  under article 21 the procedure established by law  carried with it the inherent right to legal assistance
Apart from authority it is easy to appreciate that in overwhelming majority of cases a detenu can do nothing to help himself before the Advisory Board
The right to be heard before the Advisory Board would be in many cases of little avail if it did not comprehend the right to be heard by counsel
It is expected that Parliament while making a law to regulate the procedure before an Advisory Board under article 22 7 c of the Constitution should provide the right to consult and be defended by a legal practitioner of his choice
It is incomprehensible that a person committing a crime should have under article 221 of the Constitution the right to consult and be defended by a legal practitioner of his choice but a person under preventive detention more often than not for his political beliefs should be deprived of this valuable right
It cannot be denied that preventive detention is an anachronism in a democratic society like ours
The detention of individuals without trial for any length of time however short is wholly inconsistent with the basic ideals of a parliamentary system of government
In the nature of things under the law as it exists a person under preventive detention is not entitled to legal assistance
However we think it is futile for us to attempt to project our personal views in a matter which lies in the realm of decision making of Parliament
The matter is essentially political and as such it is the concern of the statesman and therefore within the domain of the Legislature and not the Judiciary
In Smt
Kavita vs The State of Maharashtra and Ors 1 the Court recently had an occasion to deal with section 8 of the  which is in pari materia with sub section
4 of section 11 of Act
The Court speaking through Chinnappa Reddy J Observed 727 It is true that while section 8 e disentitles a detenu from claiming as of right to be represented by a lawyer it does not disentitle him from making a request for the services of a lawyer
The learned Judge emphasised that as often than not adequate legal assistance may be essential for the protection of the Fundamental to Right to life and personal liberty guaranteed by Article 21 of the Constitution and the right to be heard given to a detenu by section 8 e COFEPOSA Act and observed that this valuable right may be jeopardized and reduced to mere nothing with adequate legal assistance in the light of the intricacies of the problems involved and other relevant factors
He then went on to say whether or not legal assistance should be afforded by the Advisory Board must necessarily depend on the facts and circumstances of each individual case and observed Therefore where a detenu makes a request for legal assistance his request would have to be considered on its own merit in each individual case
In the present case the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board
Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter when he was produced before the Advisory Board could have if he was so minded made a request to the Advisory Board for permission to be represented by a lawyer
In that case there was no denial of procedural fairness which is a part of the fundamental right guaranteed under article 21 of the Constitution since no such request was made by the detenu before the Advisory Board
The decision in Kavita s case supra is however an authority for the proposition that while there is no right under section 8 e of the COFEPOSA Act to legal assistance to a detenu in the proceedings before the Advisory Board he is entitled to make such a request to the Board and the Board is bound to consider such a request when so made
In the present case the detenu made such a request but in the absence of the record of the Advisory Board it is not possible to infer whether the request was considered
Even if it was denied as the petitioner himself alleges there was no rational basis for a differential treatment
There is no denial of the fact that while the detenu was not afforded legal assis 728 tance the detaining authority was allowed to be represented by counsel
It is quite clear upon the terms of sub section
4 of section l l of the Act that the detenu had no right to legal assistance in the proceedings before the Advisory Board but it did not preclude the Board to allow such assistance to detenu when it allowed the State to be represented by an array of lawyers
The matter can be viewed from another angle
We were informed that the Advisory Board did not forward the record of its proceeding to the State Government
If that be so then procedure adopted was not in consonance with the procedure established by law
The State Government while confirming the detention order under section 12 of the Act has not only to peruse the report of the Advisory Board but also to apply its mind to the material on record itself was not before the State Government it follows that the order passed by the State Government under section 12 of the Act was without due application of mind
This is a serious infirmity in the case which makes the continued detention of the detenu illegal
We refrain from expressing any opinion on the other grounds raised
It appears to us prima facie that the grounds for detention set out the facts with sufficient degree of particularity and that they did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority
It seems to us that the order of detention cannot also be challenged that the grounds furnished were vague or indefinite or lacking in particulars or were not adequate or sufficient for the satisfaction of the detaining authority or for that matter for the making of an effective representation
For the reasons stated above the order of detention passed by the District Magistrate Ropar dated June 1 1981 is quashed and we direct that the detenu Inderjit alias Billa be set at liberty forthwith
V D K Petition allowed


Summary:
Inderjit alias Billa has been detained by an order dated June 1 1981 passed by the District Magistrate under sub section 2 of section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act 1980 PBMSECA
The detenu submitted his representation challenging the order of detention on various grounds
He had also made a request in writing that he be allowed the assistance of counsel during the hearing before the Advisory Board but the Government did not accede to his request in view of section 11 of the Act
On the contrary
at the time of hearing before the Advisory Board the State was assisted by Public Prosecutor two attorneys a District Legal Advisor and a Legal Assistant
Even at this stage the detenu requested in writing for aid of a counsel but the same was rejected
The State Government confirmed the detention under section 12 of the Act
The father of the detenu therefore challenges the order of confirmation of the detention by the State
Allowing the writ petition the Court  HELD 11
Under Article 223b of the Constitution the right to consult and be defended by a legal practitioner of his choice is denied to any person who is arrested or detained under any law providing for preventive detention
Subsection 3 of section 11 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act 1980 is undoubtedly in conformity with Article 223 b of the Constitution
Normally lawyers have no place in the proceedings before the Advisory Board
723 D 12
Upon the terms of sub section 4 of section 11 of the Act the detenu had no right to legal assistance in the proceedings before the Advisory Board but it did not preclude the Board to allow such assistance to the detenu when it allowed the State to be represented by an array of lawyers
Kavita vs The State of Maharashtra  Ors 1982 1 SCR p 138 is an authority for the proposition that while there is no right under section 8e of the COFEPOSA Act to legal 719 assistance to a detenu in the proceedings before the Advisory Board is entitled to make such a request to the Board and the Board is bound to consider such a request when so made
727 G H 728 A B Smt
Kavita vs The State of Maharashtra  Ors 1982 1 SCR p 138 distinguished
The Advisory Board is entitled to devise its own procedure
The functions of the Advisory Board are purely consultative
It is an independent body constituted under section 9 of the Act consisting of a sitting judge as the Chairman and not less than two other members who may be sitting or retired judges of the High Court
It is expected that the Advisory Board would set in a fair and impartial manner in making a report whether or not there is in its opinion sufficient cause for the detention of person
In coming to that conclusion the Board has to make an objective determination on the question as to whether there was sufficient material on which the subjective satisfaction of the detaining authority could be based
Under sub section 1 of section 11 of the Act the Advisory Board may also call for such further information as it may deem necessary for the appropriate Govt
Or from the person concerned and if in any particular case it considers essential to do so or if the person concerned desires to be heard shall hear him in person
Arbitrariness is the very antithesis of Article 14
The principle of reasonableness is an essential element of equality and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14
The history of personal liberty is largely the history of procedural safeguards
The need for observance of procedural safeguards particularly in cases of deprivation of life and liberty is therefore of prime importance to the body politic
In the context of deprivation of life and liberty  under Article 21 the procedure established by law  carried with it the inherent right to legal assistance
The right to be heard before the Advisory Board would be in many cases of little avail it did not comprehend the right to be heard by the counsel
723 D G 725 C D F 726 B C EP Royappa vs Tamil Nadu   Maneka Gandhi vs Union of India
1978 2 SCR 621 Francis Coralie Mullin vs The Administrator Union Territory of Delhi and Ors  at 531 reiterated
The State Government while confirming the detention order under section 12 of the Act has not only to peruse the report of the Advisory Board but also to apply its mind to the material on record
If the record itself was not before the State Government as is evident from there turns filed in reply to the writ petition before this Court it follows that the order passed by the State Government under section 12 of the Act was without due application of mind which is a serious infirmity in the case which makes the continued detention of the detenu illegal
728 B D OBlTER It is expected that Parliament while making a law regulate the procedure before an Advisory Board under Article 227 c of the Constitution should provide the right to consult and be defended by a legal practitioner of his choice
It is incomprehensible that a person committing a crime should 720 have under Article 221 of the Constitution the right to consult and be defended by a legal practitioner of his choice but a person under preventive detention more often than not for his political beliefs should be deprived of this valuable right
It cannot be denied that preventive detention is an anachronism in a democratic society like ours
The detention of individuals without trial for any length of time however short is wholly inconsistent with the basic ideals of a parliamentary system of government
In the nature of things under the law as it exists a person under preventive detention is not entitled to legal assistance
The matter is essentially political and as such it is the concern of the statesmen and therefore within the domain of the Legislature and not Judiciary
726 C F