IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(Crl.).No. 415 of 2009(S) --------------------------- PETITIONER : --------------- M.BABU, AGED 57 YEARS, S/O.MADHAVAN PILLAI, AMBALATHIN VILA VEEDU, CHANTHA MUKKU, PEYAD P.O., TRIVANDRUM. BY ADV. SRI.S.SREEKUMAR SRI.P.M.ZIRAJ RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY (HOME) DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. 2. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, COLLECTORATE, TRIVANDRUM. 3. DEPUTY COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY. ADDL.DIR.GEN. OF PROSECUTION SRI.K.K.RAVINDRANATH GOVERNMENT PLEADER SRI.P.RAVINDRA BABU FOR R1-3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.415 of 2009 ------------------------------------- Dated this the 4th day of December, 2009 JUDGMENT BASANT, J. Does a detenu under a law providing for preventive detention have a fundamental right to be communicated with the order passed on the representation made by him in exercise of his fundamental right under Article 22(5) of the Constitution of India ? ii) Does the communication by anyone other than the authority passing the order of the fate of the representation made by the detenu (and not the order as such) infringe such fundamental right of the detenu? iii) Has Ext.P3 representation to the Government received the irreducible minimum of “a real and proper consideration” which it is entitled to under law when it was rejected by Ext.R1(d) order dated 05.09.2009 which was communicated to the detenu under Ext.R1(b) letter? W.P(Crl.) No.415 of 2009 2 iv) Is the practice of cryptic one line (nay, one word at times) orders being passed on such representations by the authorities on the basis of notes put up by the subordinates, in tune with the high constitutional values and concern for right to life, personal liberty and freedom of the individual recognised by our system? These questions arise for consideration before us in this Writ Petition. 2. To the crucially relevant and vital facts first. The petitioner's friend, a young lady in her late thirties by name Ms.Sobha John, was ordered to be detained under Ext.P1 order of detention dt.06.08.09 passed by the 2nd respondent under Section 3(2) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA'). The said Sobha John, (the detenue hereafter), was in custody in an earlier crime. She remained in custody from 05.06.09. Ext.P1 order of detention was passed when she was so in custody already. Judicial custody was transformed into preventive detention custody on 17.08.09 in execution of the order of detention. Approval of the Government under Section 3(3) of the KAAPA was granted on 24.08.09. The confirmation of the order under W.P(Crl.) No.415 of 2009 3 Section 10(4) was issued on 21.10.09. She therefore continues in custody from 17.08.09 under Ext.P1 order. 3. She was reckoned as a known rowdy by the detaining authority in view of 4 cases registered against her. In 3 of them, final reports have already been filed. In the fourth, final report has not been filed and the same is pending investigation. 4. The alleged detenue submitted representations - Exts.P2 and P3 in exercise of her constitutional right under Article 22(5) which right is statutorily recognised in Section 7(2) of the KAAPA. The representation to the Government, copy of which is produced as Ext.P3, is not seen dated. But Ext.R1(b) order shows that the same was dated 24.08.09. It is not disputed that the power of the Government to consider such representation under the rules of business of the Government has been delegated to the Additional Chief Secretary (Home & Vigilance). The said Additional Chief Secretary passed the order on such representation on 05.09.09 which is available in Ext.R1 (d). The order reads: “Request does not deserve consideration. Rejected”. Sd/- The Additional Chief Secretary 05.09.09.” W.P(Crl.) No.415 of 2009 4 That order was communicated to the detenue by Ext.R1(b) letter dated 08.09.09 by Shri B.Babu, Deputy Secretary, evidently a subordinate of the Addl.Chief Secretary. It will be apposite to extract the contents of the said letter sans unnecessary details. “I am to inform you that your representation cited has been examined by the Additional Chief Secretary (Home & Vigilance) on behalf of Government but it is regretted to inform that the same has been rejected since it contains no valid points for consideration.” (emphasis supplied) 5. We are not adverting to the other facts which may not have a direct relevance for our consideration of the 4 questions raised above. 6. Various grounds have been urged by the learned counsel for the petitioner. We have heard the learned counsel for the petitioner Sri. S.Sreekumar and the learned Additional Director General of Prosecution Sri.K.K.Ravindranath in detail. In the nature of the contentions raised, we are satisfied that we need concern ourselves in this Writ petition with the challenge raised on the following ground only. Ext.P3 representation has not received the consideration which it is entitled to under law and the decision thereon has not been properly communicated to the detenue. W.P(Crl.) No.415 of 2009 5 7. It is unnecessary to advert to precedents. Article 22 (5) of the Constitution is extracted below: “Article 22(5): When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.” (emphasis supplied) 8. Whether this constitutional right to make a representation is recognised and reiterated in the particular piece of legislation relating to preventive detention or not, the fundamental right under Article 22(5) of the Constitution continues. However, it must be seen that this right has been recognised in Section 7(2) of the KAAPA also, which we extract below: “Section 7(2): The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a “known goonda” or “known rowdy” and giving such materials relating to his activities on the basis of which his detention has been found necessary, shall be furnished to him as soon as possible, nevertheless, in any case, within five days of detention and he shall also informed in writing, under acknowledgment, of his right to represent to the Government and before the Advisory Board against the arrest and detention.” (emphasis supplied) W.P(Crl.) No.415 of 2009 6 9. It is perhaps interesting that the Constitution and the KAAPA do not specify how the representation is to be considered. Right to make a representation and the need to afford the detenue an earliest opportunity to make such a representation are unambiguously recognised in the Constitution and the statue. It is also relevant to note that it is not even mentioned in these provisions that the representation has to be considered. But it is well trite now that the right to an earliest opportunity to make a representation takes within its wings the right to have the said representation considered properly and expeditiously by the authority competent to deal with the representation. Precedents galore on this point. We shall not hence advert to specific precedents. 10. The right to make an early representation and the right to have the same considered early, bring with it yet another facet of the right - the right to be communicated with the fate of the representation. The right to make a representation and the right to have the same considered properly and expeditiously would lose its meaning and content and would be rendered meaningless unless there is a concomitant and corresponding right to be communicated with the result of the consideration, that is the fate of the representation. Precedents have been W.P(Crl.) No.415 of 2009 7 cited before us to show that the detenue has a right to early communication of such order. The obligation to consider the representation would lose all its sheen and lustre if there were no obligation to communicate the order to the detenue in chains. We do, in these circumstances, have no hesitation to agree that the representation made must not only be considered properly and expeditiously, the fate or the result of such consideration must necessarily be conveyed to the detenue also. There can be no doubt on that proposition of law. We hold that the fundamental right under Article 22(5) includes the fundamental right to be communicated with the order passed on such representation. 11. The right to be communicated with the order is certainly not an empty formality. The detenue does not have any other right to challenge the order except to approach the Constitutional courts with prayer to invoke their paramount constitutional jurisdiction under Articles 226 and 32. He is not given any right to challenge the order in appeal. The detenue therefore has a right to know the fate of his representation. Depending on the manner in which that application has been considered, he has to decide on the further course which he should follow to challenge the order. Right to know the fate of W.P(Crl.) No.415 of 2009 8 the representation is inherent as a human right. Such knowledge of the outcome of his representation is also necessary to enable him to decide on the further course which he should follow to challenge the order. It is part of the civilisational obligation of our refined legal system wedded to rule of law that such a person who is in helpless preventive custody must be informed of the fate of his representation. Viewed from any angle therefore this right to be communicated with the order has legal overtones both from the point of view of the detenue as also the system. Our system of law accepts and recognises the existence of such a right. 12. The learned ADGP, we must candidly mention, did not fairly dispute the right of the detenue to be communicated with information about the fate of his representation. The learned ADGP contends that it is not the law that the order passed by the authority must itself be communicated. Right to communication is of the information about the fate of the petition and not the communication of the order in particular. We are in agreement with the learned ADGP. The right is to know the fate of the representation. If the fate of the representation is communicated effectively, we are of the opinion that the detenue cannot insist on the technicality that the copy of the order as W.P(Crl.) No.415 of 2009 9 such must be furnished to him. We would only observe that the fate of the representation must be effectively communicated to him. This communication can be by communicating the order passed by the authority as such by the authority itself or by any other person communicating the content of the order to the detenue. In this case Ext.R1(b) letter is not signed by the Additional Chief Secretary (Home and Vigilance), who is the delegate under the rules of business of the Government to exercise the function of the Government under Article 22(5) of the Constitution and Section 7(2) of the KAAPA. We are unable to accept the argument that communication of the order by anyone other than the delegate would vitiate the communication. It is enough, we repeat, if the order is effectively communicated to the detenue. The learned counsel for the petitioner placing reliance on the decision of a Division Bench of this Court in Lekha Nandakumar v. Government of India [2004(2) KLT 1094] contends that the order must itself be communicated to the detenue by the authority. In support of this contention reliance is placed on the following passage in para.5 of the said decision. As the context of the observation is vital we extract the entire portion, but what is crucial is only the portion emphasised. W.P(Crl.) No.415 of 2009 10 “Para.5: Ext.P5 representation was made to the Central Government and it was addressed to the Secretary to Government of India as directed in the detention order. It is a very detailed representation. That was also rejected and it was informed by Ext.P6, dated 28.05.04, dispatched on 31.05.2004, as follows: “With reference to the representation dated 04.05.04 made by Shri B.Nandakumar, a COFEPOSA detenu, he is hereby informed that the aforesaid representation has been carefully considered by the Joint Secretary, Central Economic Intelligence Bureau, Deptt. of Revenue, Ministry of Finance, New Delhi being the Detaining Authority but it is regretted that the same has been rejected. Sd/- (N.RAJAGOPALAN) Under Secretary to the Government of India This shows that the representation addressed to the Secretary was considered only by the Joint Secretary, that the representation was disposed of after more than three weeks and was not disposed of applying mind by the competent authority. Delay of 16 days was held to be unexplained by the Apex Court in Pabitra N.Rana v. Union of India AIR 1980 SC 798, and in Khaidem Ibocha Singh v. State of Manipur, AIR 1972 SC 38. It is pointed out by the learned Central Government Standing Counsel that another communication was also sent to him on 31.05.03 by the Under Secretary informing that Secretary has disposed of the representation. The learned Senior Standing Counsel has also handed over the file. It shows that on receipt of the representation the Under Secretary has prepared a note. Behind the note, the Secretary has made an endorsement as follows: “I have gone through the representation and all relevant papers. The representation does not merit acceptance.: W.P(Crl.) No.415 of 2009 11 Even though various contentions including non- supply of necessary documents etc. were mentioned in the representation, there is no application of mind by the Secretary to Government. The Secretary has just rejected the representation. It does not show that he has applied his mind. When the Authority disposes a representation, which is a constitutional right of the detenu, it cannot be disposed of like this in a casual manner. Further, the Secretary has not communicated his order to the detenu, but only the Under Secretary has communicated the order. It is true that even though making of representation is a constitutional right, there is no obligation for the Central Government to grant a hearing. It is also not necessary that an elaborate speaking order should be passed. But from the order it should appear that the authority has applied its mind while disposing of the representation. The order should be sent to the detenu. Here the order passed by the Secretary was not sent to the detenu, but only the factum of rejection of his representation was intimated by the Under Secretary keeping the detenu in dark regarding the way in which his representation was disposed of. There is nothing on record to show that the concerned authority has applied its mind. Even if the Under Secretary informed him that Secretary has disposed of his representation, this is not the way a constitutional obligation is to be discharged by the Government Secretary. Therefore, there is no proper disposal of the representation. We are of the view that on this ground alone the detention order will not stand as there is procedural violation.” (emphasis supplied) 13. Of course a reading of the portions emphasised above in the passage might suggest that communication by another of the order passed by the authority may not be sufficient. The portions emphasized above might create confusion as to whether W.P(Crl.) No.415 of 2009 12 that is the law. But we find it difficult to accept such understanding of the law based on the above observations. The order passed by the authority may be extracted in extenso or completely by a subordinate officer and that may be communicated to the detenu. In such a case it cannot possibly be contended that there is no communication for the reason that the order was not communicated by the authority which passed the order or that the order as such has not been communicated. The observations extracted above understood properly in the context, according to us, can only mean and insist that the order must be communicated effectively and not that the order as such must be communicated or that the authority which passed the order must himself communicate the order. 14. Having understood the law thus, the next question is whether there has been effective communication. It may in this context be relevant to make note of the relevant entries in the file concerned which has subsequently been placed before us as Ext.R1(d). In page Nos.9, 10 and 11 of Ext.R1(d), as paragraph numbers 8 to 12, we have the details of the sequence of events which commenced with Ext.P3 and ended with Ext.R1(d). The file notings are extracted below. W.P(Crl.) No.415 of 2009 13 “8: The detention of Smt.Sobha John has been approved by Govt. and referred to the AB. Their opinion is due only by 19.X.09. Meanwhile the detenu has put in a representation against the detention. 9. She submits that (i) entire papers relating to the order was not served on her; (ii) Her guilt has not been proved in any of the cases; (iii) Cr.No.166 of 2007 is a politically motivated false case; (iv) Cr.No.12/08 is a false case due to the influence of one Lakhana; (v) In Cr.No.323/09, she is only a material witness; (vi) There is not enough material to classify her as a known rowdy; (vii) Case diary do not form part of the records before the authorised officer; (viii) She is a house wife with a child and her aged mother is solely dependent on her. 10. The representation with the information at para.9 and the details of the detention are put up for kind consideration and orders. (paragraphs 8, 9 and 10 are in the hand of some subordinate) 11. Notes above may be seen. There are 3 cases against the detenue under trial and one case under investigation. Hence the court will decide W.P(Crl.) No.415 of 2009 14 whether she is guilty or not. It may be noted that 3 cases against her under trial is a sufficient cause to detain her as per the KAAP Act. The other points raised by her are also baseless. Hence the request may be rejected. Sd/- Babu.B Deputy Secretary to Govt. Home Dept. Govt. Secretariat Thiruvananthapuram 12. Request does not deserve consideration. Rejected. Sd/- 05/09/09 K.Jayakumar Additional Chief Secretary Home & Vigilance 13. Orders above. DFA.” 15. We have already extracted contents of Ext.R1(b) letter, under which a Deputy Secretary of the Government on behalf of the Additional Chief Secretary has communicated to the detenue the fate of her representation. 16. The learned counsel for the petitioner argues that Ext.R1(b), by no stretch of imagination, can be held to be a communication of the order dated 05.09.09 of the Additional Chief Secretary (Home and Vigilance). The Additional Chief Secretary (Home and Vigilance) had only passed the order “Request does not deserve consideration. Rejected”. If Ext.R1 (b) is read and reread, it cannot be seen that such an order has W.P(Crl.) No.415 of 2009 15 been communicated under Ext.R1(b). Nay, what is stranger is that in Ext.R1(b) it is said that the rejection is “since it contains no valid points of consideration”. That is not something which we can discover or invent in the order dated 05.09.09 of the Additional Chief Secretary. 17. Driven to the wall, the learned Additional Director General of Prosecution comes out with a very ingenious explanation. The learned ADGP argues that the order “Request does not deserve consideration. Rejected.” must realistically be read as “representation does not deserve acceptance. Rejected”. Going by plain commonsense and the rules of semantics, we are afraid, the order passed on 05.09.09 cannot yield to such a construction. The learned ADGP submits that the representation has 2 parts - the first is the statement of facts and contentions and finally the request made. It is contended that when the Additional Chief Secretary stated that the request does not deserve consideration, the intention was not to say that the representation does not deserve consideration. Only the request did not deserve consideration. It is argued that the request in the last paragraph of Ext.P3 was “that the order of detention may be revoked”. That request did not deserve consideration. That is what the Addl.Chief Secretary held, it is urged. W.P(Crl.) No.415 of 2009 16 18. There is inherent danger in the invitation to read the order dated 05.09.09 in that manner. If we try to read it in that way, it would mean that the representation was not considered at all. The obligation is to consider the representation and not necessarily the request alone. In that view of the matter even if it were to be held that only the request was held not to deserve consideration, the representation will still remain unconsidered. 19. It is argued that the expression “does not deserve consideration” should not be read to conclude that the “request or the representation was not considered or they did not deserve consideration”. Notwithstanding the particular words used, the conclusion is irresistible that what was decided was that the representation/request did not deserve favourable consideration/acceptance, argues the learned ADGP. 20. The learned counsel for the petitioner argues that what is stated in the order dt.05.09.09 is not communicated and what is communicated in the letter Ext.R1(b) is not ordered. The counsel hence contends that there is no effective communication. 21. We have considered the question whether the order dated 05.09.09 can be read to mean that “the representation does not deserve acceptance and is hence rejected”. In this context the learned counsel for the petitioner points out that W.P(Crl.) No.415 of 2009 17 such a favourable conclusion taking liberal and generous view of the lapse on the part of the officer is not justified at all. The learned counsel relies on the observations in Hem Lall Bhandari v. State of Sikkim [AIR 1987 S.C 762] which are extracted with approval in the later decision in para.11 of Union of India v. Paul Manickam [(2003) 8 S.C.C 342]. “It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers.” 22. On the basis of the above discussions, we take the view that going by the plain language of the order dated 05.09.09 and Ext.R1(b) letter, it cannot be held that there has been an effective communication. 23. That takes us to the next question whether Ext.P3 representation has received the consideration which is due to it in terms of Article 22(5) of the Constitution and Section 7(2) of the KAAPA. It is unnecessary to advert to precedents in detail. We had occasion to consider this question in detail in Sruthi v. State of Kerala [2009(4) KLT 893]). We had in that decision adverted to the milestone decisions rendered by the Supreme Court on this aspect. It has been held beyond the trace of a semblance of doubt that such representation by the detenu W.P(Crl.) No.415 of 2009 18 cannot be disposed of casually or mechanically. The minimum that such a representation deserves is a “real and proper consideration” as held in H.Saha v. State of West Bengal [A.I.R 1974 S.C 2154]. In Bhut Nath Mete v. State of W.B [(1974) 1 SCC 645] it has been held that “it must be self evident from the order that the substance of the charge and the essential answers in the representation have been impartially considered.” 24. Still later in John Martin v. State of W.B [(1975) 3 SCC 836], a 3 Judge Bench of the Supreme Court after adverting to H.Saha (supra) and Bhut Nath (supra) has held as follows in para.3: Para.3: ......................................................................... ............................................................................. This however, does not mean