Case: Sat Pal Vs. State of Punjab &amp; Others

on 22-10-1981 there was in that case as here a lapse on the part of the State Government in forwarding the representation simultaneously made by the detenu to the Central Government for revocation of the order of detention under Section 11. The Court struck down the order of detention on the ground that there was a denial of the constitutional safeguard of the right of being afforded the earliest opportunity of making a representation against the order as contemplated by Art. 22(5). Chandrachud, C.J. speaking for the Court observed:"Some one tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right to defend and assert his fundamental right of personal liberty."The learned Chief Justice went on to say"May be that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenu. Section 11(a) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenus representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must therefore be held illegal and the detenu set free."The decision in Rattan Singhs case (supra) is, however, distinguishable on facts. In that case, the representation made to the Central Government for revocation of the order of detention was not forwarded at all to the Central Government and, therefore, the continued detention of the detenu was held to be illegal. As against this, in the instant case, the representation made by the detenu was forwarded to the Central Government on September 23, 1981, i.e., after a lapse of 2 months and 15 days. The Central Government acted with great promptitude in dealing with the representation and found no ground to interfere with the order of detention. Shri N. I. Ramanathan, Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, COFEPOSA Unit, has revealed that the copy of the representation endorsed to the Central Government was received in the Ministry of Finance on September 24, 1981. The said representation was considered by the Central Government and rejected on September 28, 198112. In the present case, there was, therefore, no denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act, unlike in Rattan Singhs case (supra). There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act. The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technically13. We have no hesitation in repelling the contention that the power of revocation conferred on the Central Government under Section 11 is not attracted until the State Government has considered the representation made by the detenu and rejected it and until the Advisory Board has submitted its report to the State Government. Under the Act, a detenu has the right to simultaneously make a representation to the detaining authority which has to be considered by the Advisory Board, as also the right to apply to the Central Government for revocation of the detention order under Section 11. It is implicit in the decision in Rattan Singhs case (supra), that there was a duty cast on the State Government to forward the representation to the Central Government forthwith and failure to do so may render the continued detention illegal. Failure to comply with the second condition does not make the order of detention valid, merely because there is compliance with the first. There consideration, however, do not arise in the present case14. We are also constrained to record our disapproval of the disdainful attitude displayed by Shri Kuldip Singh Janjua, IAS, Joint Secretary to the Government of Punjab. Home Department. In his counter-affidavit there is no denial of the allegation made by the detenu and indeed, there is no explanation for not forwarding the representation to the Central Government till September 23, 1981. There is instead a statement to the effect"..... the time imperative can never be absolute or obsessive. The occasional observations that each days delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula." We are at a loss to appreciate the propriety of this observation. It betrays complete lack of awareness of the constitutional obligations imposed under Art. 22(5) and shows disrespect to the several decisions of this Court laying down that matters where the liberty of the subject is involved, should not be treated in a cavalier fashion

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

Explanation:
0[ds]12. In the present case, there was, therefore, no denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act, unlike in Rattan Singhs case (supra). There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority, as well as of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act. The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technically13. We have no hesitation in repelling the contention that the power of revocation conferred on the Central Government under Section 11 is not attracted until the State Government has considered the representation made by the detenu and rejected it and until the Advisory Board has submitted its report to the State Government. Under the Act, a detenu has the right to simultaneously make a representation to the detaining authority which has to be considered by the Advisory Board, as also the right to apply to the Central Government for revocation of the detention order under Section 11. It is implicit in the decision in Rattan Singhs case (supra), that there was a duty cast on the State Government to forward the representation to the Central Government forthwith and failure to do so may render the continued detention illegal. Failure to comply with the second condition does not make the order of detention valid, merely because there is compliance with the first. There consideration, however, do not arise in the present case14. We are also constrained to record our disapproval of the disdainful attitude displayed by Shri Kuldip Singh Janjua, IAS, Joint Secretary to the Government of Punjab. Home Department. In histhere is no denial of the allegation made by the detenu and indeed, there is no explanation for not forwarding the representation to the Central Government till September 23, 1981. There is instead a statement to the effect"..... the time imperative can never be absolute or obsessive. The occasional observations that each days delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula." We are at a loss to appreciate the propriety of this observation. It betrays complete lack of awareness of the constitutional obligations imposed under Art. 22(5) and shows disrespect to the several decisions of this Court laying down that matters where the liberty of the subject is involved, should not be treated in a cavalierThe whole purpose of a representation that a detenu makes under Art. 22(5) of the Constitution read with Section 8 of the Act, is to secure revocation of the order of detention. It is evident from the scheme of the Act that the power of revocation is exercisable at two stages. In the first place, there is a duty cast on the appropriate Government, i.e. the Central Government or the State Government, as the case may be, to revoke the detention order under Section 8(f) of the Act and cause the person to be released forthwith, where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention. Secondly, the Central Government, may, at any time under clause (b) of(1) of Section 11 of the Act, revoke an order of detention that has been made by an officer of the Central Government or by a State Government. Under Clause (a) thereof, the State Government may likewise exercise such power in relation to an order made by an officer of the State Government. Under Section 11(1)(b) of the Act, the Central Government, therefore, has the overriding power to revoke a detention order, at any time, made by the State Government, or an officer of the State Government, under(1) of Section 3 of the Act. That is as it should be, as under our federal structure the Central must always keep a vigilant eye in the matter of life and liberty of a citizen guaranteed under Art. 21