Case: Phillippa Anne Duke Vs. The State Of Tamil Nadu &amp; Ors

following observations of the Constitution Bench in A. K. Roy v. Union of India, AIR 1982 SC 710 :-"Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend. A detenu, taken straight from his cell to the Boards room, may lack the ease and composure to present his point of view. He may be "tongue-tied, nervous, confused or wanting in intelligence" (see Pett v. Greyhound Racing Association Ltd., 1969 1 QB 125), and if justice is to be done, he must at least have the help of a friend who can assist him to give conference to his stray and wandering ideas. Incarceration makes a man and his thoughts dishevelled. Just as a person who is dumb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is not denial of natural justice per se, and, therefore, if a statute excludes that facility expressly, it would not be open to the Tribunal to allow it. Fairness, as said by Lord Denning M. R., in Maynard v. Osmond, 1977 1 QB 240, 253, can be obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility."5. In the present case, the Advisory Board consisting of three Judges of the High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus. It was a matter for the decision of the Advisory Board and I do not think I will be justified in substituting my judgment in the place of their judgment. The detenus were heard personally by the advisory Board. After seeing and hearing them personally also, the Board did not feel it necessary to provide legal representation to them which they would certainly have done if they had thought that the detenus appeared to require such representation. Regarding representation by a friend, there was never any such demand by the detenus. A friendly representation would certainly have been provided if it had been so demanded. It was not for the Advisory Board to offer friendly representation to the detenus even if the latter did not ask for it. Relying upon a sentence in the counter-affidavit of Shri Kiru Bhakaran that representation not only by a lawyer but by a friend was also considered not necessary by the Advisory Board, it was argued that the Advisory Board had, without warrant, refused even friendly representation. Shri Kiru Bhakaran was speaking for the State of Tamil Nadu and not for the Advisory Board. I have perused the file of the Advisory Board which was produced before me and I have also perused the communications addressed by the Advisory Board to the Government of Tamil Nadu and to the detenus. I do not find the slightest hint of a demand for friendly representation or its denial anywhere. The Advisory Board was neither asked nor did not Board deny any friendly representation6. A charge was made against the Advisory Board that there was inequality of treatment. It was said that while the detaining authority was allowed to be represented by its officers and advisers, the detenus were allowed no representation. There is no substance in this charg . From the affidavit of the Chairman of the Advisory Board. I find that all that happened was that some customs officers were allowed to be present in the corridor so as to enable them to produce the relevant files whenever required fore per ual by the Board. The charge of inequality of treatment is, therefore, baseless7. Yet another submission of the learned counsel was that the Advisory Board failed to consider the question whether the detention continued to be justified on the date of the report of the Advisory Board, even if it was justified on the date of the making of the order of detention. The order of detention was made on 7-1-82 and the consideration by the Advisory Board was on 8-2-82. The passage of time was not so long nor had any circumstances intervened to justify any compartmentwise consideration of the justification for the detention on the date of the making of the order of detention and on the date of the report of the Advisory Board. In the circumstances of the case. I think that the report of the Advisory Board that three was sufficient cause for the detention of Richard Beale and Paul Duncan Zawadzki necessarily implied that the detention was four by the Board to be justified on the date of its report as also on the date of the making of the order of detention8. A complaint was also made that the Advisory Board carried on its correspondence with the detenus through the Government. This, it was stated, gave rise to a suspicion that everything was done by the Board at the behest or in consultation with the Government. This complaint is wholly unjustified. As already mentioned by me, the Advisory Board consisted of three Judges of the High Court of Tamil Nadu and as explained by the Chairman in his affidavit, the correspondence etc. is carried on through the Government because the board has no separate administrative office of its own.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]Apart from the fact that there is no proper foundation for the submission, I am not satisfied that there is any merit in the submission. The Writ Petitions were filed on March 12, 1982 and there was then no hint of this submission, the counter-affidavit on behalf of the State of Tamil Nadu was filed on April 5, 1982. Thereafter, the clerk of the learned counsel for the petitioners has sworn to an affidavit mentioning the facts giving rise to the present submission.It was next submitted by the learned counsel that the Chief Minister, who according to the Rule of Business of the Government of Tamil Nadu, was required to deal with matters relating to preventive detention neither applied his mind to the making of the orders of detention, nor considered the representation of the detenus himself.The relevant files have been produced by the learned counsel for the State of Tamil Nadu and on perusing them, I find no substance in the submission of the learned counsel4. The submission which was most strenuously urged by the learned counsel was that the detenus had been denied the right to be represented before the Advisory Board by the Advocate or at least by a friend and that they were thus denied the right to make a proper and effective representation to the Advisory Board. This was sufficient, said the learned counsel, to vitiate the detention. The learned counsel urged that the detenus were foreign national and they were under a handicap being ignornat of the laws and procedures of this country. To deny legal representation to them was an unreasonable exercise of the discretion vested in the Advisory Board to permit or not to permit legal representation. According to the learned counsel, this was a clear case where legal representation should have been permitted. In any case, it was urged, the detenus ought to have been offered at least friendly representation, if not legal representation.In the present case, the Advisory Board consisting of three Judges of the High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus. It was a matter for the decision of the Advisory Board and I do not think I will be justified in substituting my judgment in the place of their judgment. The detenus were heard personally by the advisory Board. After seeing and hearing them personally also, the Board did not feel it necessary to provide legal representation to them which they would certainly have done if they had thought that the detenus appeared to require such representation. Regarding representation by a friend, there was never any such demand by the detenus. A friendly representation would certainly have been provided if it had been so demanded. It was not for the Advisory Board to offer friendly representation to the detenus even if the latter did not ask for it. Relying upon a sentence in the counter-affidavit of Shri Kiru Bhakaran that representation not only by a lawyer but by a friend was also considered not necessary by the Advisory Board, it was argued that the Advisory Board had, without warrant, refused even friendly representation. Shri Kiru Bhakaran was speaking for the State of Tamil Nadu and not for the Advisory Board. I have perused the file of the Advisory Board which was produced before me and I have also perused the communications addressed by the Advisory Board to the Government of Tamil Nadu and to the detenus. I do not find the slightest hint of a demand for friendly representation or its denial anywhere. The Advisory Board was neither asked nor did not Board deny any friendlyorder of detention was made on 7-1-82 and the consideration by the Advisory Board was on 8-2-82. The passage of time was not so long nor had any circumstances intervened to justify any compartmentwise consideration of the justification for the detention on the date of the making of the order of detention and on the date of the report of the Advisory Board. In the circumstances of the case. I think that the report of the Advisory Board that three was sufficient cause for the detention of Richard Beale and Paul Duncan Zawadzki necessarily implied that the detention was four by the Board to be justified on the date of its report as also on the date of the making of the order of detention8. A complaint was also made that the Advisory Board carried on its correspondence with the detenus through the Government. This, it was stated, gave rise to a suspicion that everything was done by the Board at the behest or in consultation with the Government. This complaint is wholly unjustified. As already mentioned by me, the Advisory Board consisted of three Judges of the High Court of Tamil Nadu and as explained by the Chairman in his affidavit, the correspondence etc. is carried on through the Government because the board has no separate administrative office of its own