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

1. In this case the petitioners have obtained a rule calling upon the respondent, viz., the State of West Bengal, to show cause why a writ of habeas corpus should not be issued under Article 32 of the Constitution directing their release from detention under order passed under Section 3 (2) ofthe Preventive Detention Act, 1950 Act IV of 1950) (hereinafter called the Act). Cause has been shown by Mr. Debabrata Mukherjee and other counsel on behalf of the respondent to whom notice of the rule was ordered to be given.2. At the conclusion of the hearing of this petition on 15th January, 1969, we directed the release of these petitioners and said that the reasons would be furnished later. We shall now proceed to state those reasons.

Reasoning: 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.