Case: Jayanarayan Sukul Vs. State of West Bengal

question of period within which the Government could dispose of the representation of the detenu because it was felt that there was an apparent conflict between the cases of Shyamal Chakravarty, W. P. No. 102 of 1969, D/- 4-8-1969 = (AIR 1970 SC 269 ) and Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 (reported in 1969-2 SCWR 529) (supra).17. In view of the fact that there is a fundamental right of the detenu to have the representation considered by the appropriate Government such right will be rendered meaningless if the Government will not deal with the matter expenditiously but at its own will and convenience. In the case of Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 (reported in 1969-2 SCWR 529) (supra) the petitioner made a representation on 23rd June, 1969. The Advisory Board made its report in 11th August, 1969 on 12th August, 1969 the Governor confirmed the order of detention. On 29th August, 1969 the Governor rejected the petitioners representation. The delay was not explained in that case. The disposal of the representation by the Government after the receipt of the Report of the Advisory Board was found by this Court to raise a doubt there whether the Government considered the representation in an independent manner. This independent consideration by the appropriate Government is implicit in Article 22 of the Constitution.18. In the case of Durga Show, W. Ps. Nos. 198, 205 of 1969, D/- 2-9-1969 = (reported in 1969-2 SCWR 439) three petitioners were set at liberty. There the representation of one detenu was received on 29th May, 1969, and was rejected on 11th August. In another case the representation of the detenu was received on 18th June, 1969 and was rejected by the Government on 16th August, 1969. In the third case the representation of the detenu was received on 28th June, 1969 and was rejected on 14th July, 1969. In the case of Durga Show, W. P. Nos. 198, 205, 206 of 1969, D/- 2-9-1969 = (reported in 1969-2 SCWR 439) (supra) the opinion of this Court in the case of Sk. Abdul Karim, W. P. No. 327 of 1968, D/- 31-1-1969 = (AIR 1969 SC 1028 ) (supra) was re-stated by emphasising the legal obligation of the appropriate Government to consider the representation of the detenu "as soon as it is received by it".19. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.20. No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in the words of Shelat. J. who spoke for this Court in the case of Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 = (reported in 1969-2 SCWR 529) (supra)"it is obvious that the obligation to furnish the earlier opportunity to make a representation loses both its purpose and meaning".21. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible.Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizens right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to Advisory Board. If the appropriate Government will release the detenu the Government will not sent the matter to the Advisory Board. If however the Government will not release the detenu the Government will sent the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.22. In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment.23.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. It, therefore, follows that the appropriate authority is to consider the representation of the detenu uninfluenced by any opinion or consideration of the Advisory Board. In the case of Khairul Haque v. State of West Bengal, W. P. No. 246 of 1969, D/- 10-9-1969 (reported in 1969-2 SCWR 529) this Court observed that"it is implicit in the language of Article 22 that the appropriate Government, while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation".The logic behind this proposition is that the Government should immediately consider the representation of the detenu before sending the matter to the Advisory Board and further that such action will then have the real flavour of independent judgment.It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in the words of Shelat. J. who spoke for this Court in the case of Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 = (reported in 1969-2 SCWR 529) (supra)"it is obvious that the obligation to furnish the earlier opportunity to make a representation loses both its purpose and meaning".Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible.Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizens right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to Advisory Board. If the appropriate Government will release the detenu the Government will not sent the matter to the Advisory Board. If however the Government will not release the detenu the Government will sent the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment.