Case: Abdul Karim And Others Vs. State Of West Bengal

necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Article 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22 (5) is a valuable constitutional right and is not a mere formality.It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the view point contended for by the respondent is correct, the constitutional right under Article 22 (5) would be rendered illusory. Take for instance a case of detention of a person on account of mistaken identity. If the order of detention has been made against A and a different person B is arrested and detained by the police authorities because of similarity of names or some such cause, it cannot be reasonably said that the State Government should wait for the report of the Advisory Board before releasing the wrong person from detention. It is obvious that apart from the procedure of reference to the Advisory Board, the State Government has ample power under Section 13 of the Act to revoke any order of detention at any time. If the right of representation in such a case is to be real and not illusory, there is a legal obligation imposed upon the State Government to consider the representation and to take appropriate action thereon. Otherwise the right of representation conferred by Article 22 (5) of the Constitution would be rendered nugatory. The argument of Mr. Debabrata Mukherjee as regards the construction of Article 22 (5) cannot also be correct for another reason. Under Article 22 clause (4) of the Constitution, it is open to Parliament to make a law providing for preventive detention for a period of less than three months without the cause of detention being investigated by an Advisory Board. It is clear that the right of representation conferred by clause (5) of Article 22 does not depend upon the duration of period of detention. Even if the period of detention is less than three months, the detenu has a constitutional right of representation. It is also important to notice that under Article 22 (7) Parliament may by law prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board. It cannot possibly be argued that if Parliament makes a law contemplated by Article 22 (7) of the Constitution, the detaining authority is under no legal obligation to consider the representation made by the detenu under Article 22 (5).12. Faced with this difficulty counsel on behalf of the respondent conceded that in a case where the detention is for a period of less than three months or in a case contemplated by Article 22 (7), the State Government will be legally obliged to consider the representation of the detenu. But it was suggested that in a case where a reference has to be made to the Advisory Board it was not necessary for the State Government to consider the representation. We are unable to accept this argument as correct. There is no such dichotomy in the scheme of Article 22 (5) of the Constitution and there is no reason why it must be interpreted in a different manner for the two classes of detenus.It is manifest that the right under Article 22 (5) to make a representation has been guaranteed independent of the duration of the period of detention and irrespective of the existence or non-existence of an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right of consideration by the State Government whether a person should be detained even for a single day. The obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the reference. It follows, therefore, that even if reference is to be made to the Advisory Board under Section 9 of the Act, the appropriate Government is under legal obligation to consider the representation of the detenu before such a reference is made.13. In the present case, Sk. Abdul Karim has alleged that his representation was not considered by the State Government before it was forwarded to the Advisory Board. This allegation is not controverted in the counter-affidavit filed on behalf of the respondent. What is at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be rendered illegal. Accordingly, the order of detention dated 17th February, 1968 made against petitioner No. 2, Sk. Abdul Karim and the subsequent order of the Governor of West Bengal dated 24th April, 1968, confirming the order of detention must be held to be illegal and ultra vires and petitioner No, 2 Sk. Abdul Karim was entitled to be released.

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

Explanation:
1[ds]On behalf of the respondent it was said that there was no express language in Article 22 (5) requiring the State Government to consider the representation of the detenu.But it is a necessary implication of the language of Article 22 (5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Article 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22 (5) is a valuable constitutional right and is not a mere formality.It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board isis at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be rendereds of the respondent are somewhat vague and the allegation of the petitioner has not been categoricallyare unable to accept this argument as correct. There is no such dichotomy in the scheme of Article 22 (5) of the Constitution and there is no reason why it must be interpreted in a different manner for the two classes ofis manifest that the right under Article 22 (5) to make a representation has been guaranteed independent of the duration of the period of detention and irrespective of the existence orof an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right of consideration by the State Government whether a person should be detained even for a single day. The obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the reference. It follows, therefore, that even if reference is to be made to the Advisory Board under Section 9 of the Act, the appropriate Government is under legal obligation to consider the representation of the detenu before such a reference isallegation is not controverted in thefiled on behalf of the respondent. Whatis at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be renderedillegal. Accordingly, the order of detention dated 17th February, 1968 made against petitioner No. 2, Sk. Abdul Karim and the subsequent order of the Governor of West Bengal dated 24th April, 1968, confirming the order of detention must be held to be illegal and ultra vires and petitioner No, 2 Sk. Abdul Karim was entitled to be released.