Case ID: 4460

Judgment:
etition (Criminal) No. 4975 of 1981. (Under Article 32 of the Constitution) Kapil Sibal	 Ramesh C. Pathak	 Subhash Sharma. R. K Khinria and R.K. Handa for the Petitioner. O.P. Sharma and M. section Dhillon for the Respondent. The Judgment of the Court was delivered by SEN	 J. This is a petition under article 32 of the Constitution by one Nand Lal Bajaj for the issuance of a writ of habeas corpus for the release of his son	 Inderjit @ Billa	 who has been detained by an order of detention passed by the District Magistrate	 Ropar	 under section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act	 1980 (hereinafter called 'the Act ')	 on being satisfied that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the life of the community. Various grounds have been taken challenging the validity of the order of detention	 but it is not necessary for us to deal with them all as the view that we take on one of them is sufficient to dispose of the petition. The main contention is that the procedure adopted by the Advisory Board in allowing legal assistance to the State and denying such assistance to the detenu was both arbitrary and unreasonable and thus violative of article 21 read with article 14 of the Constitution. First as to the facts. On June 1	 1981	 the District Magistrate passed an order of detention under sub section (2) of section 3 of the Act on 721 being satisfied that detention of Inderjit was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community	 and as required by sub section (3) thereof	 made a report forthwith to the State Government together with the grounds on which the order of detention had been made and the State Government approved of the same. The detenu was apprehended on June 11	 1981 and served with the order of detention together with the grounds and	 in due course	 the detenu submitted his representation challenging the order of detention to the State Government. He made a request in writing that he be allowed the assistance of counsel during the hearing before the Advisory Board	 but the Government did not accede to his request. However. it appears that the detaining authority was represented by the State counsel at the hearing. The detenu thereupon asked the Advisory Board that he may also be afforded an opportunity for legal assistance. What transpired before the Advisory Board can best be stated in the words of the petitioner. The relevant averment in para 17 of the petition is as follows: Before the commencement of these proceedings the detenu requested the State Government in writing that he be allowed assistance of counsel during the course of the proceedings before the Advisory Board. The said request was denied. The detenu to his utter surprise found that there he had to place his case before the Advisory Board without assistance of Counsel	 the order of detention was defended by State Counsel. The lawyers representing the State	 during the course of the proceedings before the Advisory Board included the District Attorney and the Additional District Attorney who were assisted by the District Legal Advisor and one legal assistant. The detenu had also requested to Advisory Board verbally that he be allowed the assistance of counsel during the course of the proceedings. (emphasis added) In answer to the rule nisi	 the District Magistrate Ropar who is the detaining authority	 has filed a counter affidavit by which he ex plained the circumstances which led to the issue of the detention order. In reply to para 17 of the petition	 it is averred: In reply to para 17 of the petition it is stated that section 11(4) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act	 722 1980 prohibited the assistance of a lawyer to the detenu before the proceedings of Advisory Board	 which are confidential. However the Advisory Board is competent to call any information from the appropriate Govt. as laid in section 11(1) of the Act. It is thus manifest that there was no traverse of the specific allegation made by the petitioner that while the Advisory Board allowed legal assistance to the detaining authority	 there was denial of such an opportunity to the detenu. In substance	 the District Magistrate does not deal with the facts but states the law. Despite the order of this Court for the production of the file containing the proceedings of the Advisory Board	 all that was shown to us was the report of the Advisory Board. We were in formed that the record was not with the State Government but with the Board. It was represented that the Advisory Board does not forward its records because they are confidential. In the absence of ) the record	 there is no other alternative but to proceed on the allegations made by the petitioner. The report of the Board does indicate that the Public Prosecutor who was present was questioned on one of the aspects of the matter. It also records the presence of two Additional District Attorneys. It is argued on behalf of the State that under sub section (4) of section 11 of the Act the detenu was not entitled to any legal assistance before the Advisory Board. The submission is that the proceedings of the Board and its report except that part of the report in which the opinion of the Board is expressed	 are confidential. Therefore	 lawyers have no place in the proceedings before the Advisory Board. It is further argued that the Advisory Board is entitled to devise its own procedure. Our attention was drawn to sub section (I) of section 11 of the Act	 and it is urged that the Advisory Board is entitled not only to look into the record and see whether there was any material on which the order of detention could be passed under section 3 of the Act	 but may also call for any such further information as it may deem necessary. Sub sections (I) of the Act on which reliance has been placed by the State are as follows: 11. (1) The Advisory Board shall	 after considering the materials placed before it and	 after calling for such further information as it may deem necessary from the appropriate 723 Government or from any person called for the purpose through the appropriate Government or from the person concerned	 and if	 in any particular case	 it considers it essential so to do or if the person concerned desires to be heard	 after hearing him in person	 submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned. (4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board	 and the proceeding of the Advisory Board	 and its report	 excepting that part of the report in which the opinion of the Advisory Board is specified	 shall be confidential. Under article 22(3) (b) of the Constitution	 the right to consult and be defended by a legal practitioner of his choice is denied to any person who is arrested or detained under any law providing for preventive detention. Sub section (4) of section 11 of the Act is undoubtedly in conformity with article 22(3) (b) of the Constitution. Normally	 lawyers have no place in the proceedings before the Advisory Board. The functions of the Advisory Board are purely consultative. It is an independent body constituted under section 9 of the Act consisting of a silting Judge as the Chairman and not less than two other members who may be sitting or retired judges of the High Court. It is expected that the Advisory Board would act in a fair and impartial manner in making a report whether or not there is	 in its opinion	 sufficient cause for the detention of a person. In coming to that conclusion	 the Board has to make an objective determination on the question as to whether there was sufficient material on which the subjective satisfaction of the detaining authority could be based. Under sub section (I) of section 11 of the Act	 the Board is not only entitled to look into the record and see whether there was any material on which the order of detention could be passed under section 3 of the Act	 but may also call for such further information as it may deem necessary from the appropriate Government or from the person concerned and if	 in any particular case	 it considers essential to do so or if the person concerned desires to be heard	 shall hear him in person. The Board is entitled to devise its own procedure. It is the arbitrariness of the procedure adopted by the Advisory Board that vitiates the impugned order of detention. There is no 724 denying the fact that while the Advisory Board disallowed the detenu 's request for legal assistance	 it allowed the detaining authority to be represented by counsel. It appears that the Advisory Board blindly applied the provisions of sub section (4) of section 11 of the Act to the case of the detenu failing lo appreciate that it could not allow legal assistance to the detaining authority and deny the same to the detenu. The Advisory Board is expected to act in a manner which is just and fair to both the parties. The report of the Board placed before us shows that the detenu exercised his right to recall some of the witnesses for the purpose of cross examination We are informed that the hearing before the Advisory Board went on for 4 to 5 days and there were as many as 11 witnesses cross examined by the detenu. It cannot be	 as is suggested by the counsel for the State	 that the lawyers representing the State Government did not participate in the proceedings. On the contrary	 the report itself shows that the Public Prosecutor was called upon to explain some aspects of the case. If the matter was so intricate	 the Advisory Board should have ensured that both the parties had equal opportunity to place their respective cases. It appears that the dice was loaded against the detenu in that whereas he had to go without legal assistance	 the State Government had the benefit of an array of lawyers. The expression 'procedure established by law ' in the context of deprivation of life and liberty under article 21 was interpreted in Maneka Gandhi vs Union of India(l) and the interpretation so put has been treated as involving an enlargement of the right conferred by article 21 of the Constitution. As limited to the procedure	 the judges were agreed that the procedure must be reasonable and fair and not arbitrary or capricious. For	 if the procedure was arbitrary	 it would violate article 14 since article 14 is not consistent with any arbitrary power.(2) In interpreting the expression 'procedure established by law ' in article 21 with reference to article 14 of the Constitution	 Bhagwati	 J.	 observed(3): We must reiterate here what was pointed out by the majority in E.P. Royappa v T.N.(4) namely	 that 'from a positivistic point of view	 equality is antithetic to the rule of law in a republic	 while the other	 to the whim and caprice 725 of an absolute monarch. Where an act is arbitrary	 it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of article 14 '. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness	 which legally as well as philosophically	 is an essential element of equality or non arbitrariness pervades Article '4 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be 'right and just and fair ' and not arbitrary	 fanciful or oppressive	 otherwise	 it would be no procedure at all and the requirement of Article 21 would not be satisfied. Arbitrariness is the very antithesis of article 14. The principle of reasonableness is an essential element of equality and the procedure contemplated by article 21 must answer the test of reasonableness in order to be in conformity with article 14. Among the concurring opinions	 Krishna Iyer	 J.	 although he generally agreed with Bhagwati	 J.	 goes a step forward by observing(l): Procedural safeguards are the indispensable essence of liberty. In fact	 the history of procedural safeguards and the right to a hearing has a human right ring. In India	 because of poverty and illiteracy	 the people are unable to protect and defend their rights: observance of fundamental rights is not regarded as good politics and their transgression as bad politics. In short	 the history of personal liberty is largely the history of procedural safeguards. The need for observance of procedural safeguards	 particularly in cases of deprivation of life and liberty is	 therefore	 of prime importance to the body politic. In Francis Coralie Mullin vs The Administrator	 Union Territory of Delhi and ors.(2) the inter relation between articles 21 and 14 of the Constitution was brought out by Bhagwati	 J. in these words : The right of detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence 726 in a criminal proceeding but also for securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding	 civil or criminal is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable	 fair and just procedure established by a valid law. It is increasingly felt that in the context of 'deprivation of life and liberty ' under article 21	 the 'procedure established by law ' carried with it the inherent right to legal assistance. Apart from authority it is easy to appreciate that in overwhelming majority of cases a detenu can do nothing to help himself before the Advisory Board. The right to be heard before the Advisory Board would be	 in many cases	 of little avail if it did not comprehend the right to be heard by counsel. It is expected that Parliament while making a law to regulate the procedure before an Advisory Board under article 22 (7) (c) of the Constitution should provide the right to consult and be defended by a legal practitioner of his choice. It is incomprehensible that a person committing a crime should have under article 22(1) of the Constitution the right to consult and be defended by a legal practitioner of his choice	 but a person under preventive detention	 more often than not for his political beliefs	 should be deprived of this valuable right. It cannot be denied that preventive detention is an anachronism in a democratic society like ours. The detention of individuals without trial for any length of time	 however short	 is wholly inconsistent with the basic ideals of a parliamentary system of government. In the nature of things	 under the law as it exists	 a person under preventive detention is not entitled to legal assistance. However	 we think it is futile for us to attempt to project our personal views in a matter which lies in the realm of decision making of Parliament. The matter is essentially political and as such it is the concern of the statesman and	 therefore	 within the domain of the Legislature	 and not the Judiciary. In Smt. Kavita vs The State of Maharashtra and Ors (1) the Court recently had an occasion to deal with section 8 of the 	 which is in pari materia with sub section (4) of section 11 of Act. The Court speaking through Chinnappa Reddy	 J. Observed: 727 It is true that while section 8 (e) disentitles a detenu from claiming as of right to be represented by a lawyer	 it does not disentitle him from making a request for the services of a lawyer. The learned Judge emphasised that "as often than not adequate legal assistance may be essential for the protection of the Fundamental to Right to life and personal liberty guaranteed by Article 21 of the Constitution and the right to be heard given to a detenu by section 8 (e)	 COFEPOSA Act" and observed that this valuable right may be jeopardized and reduced to mere nothing with adequate legal assistance	 in the light of the intricacies of the problems involved and other relevant factors. He then went on to say whether or not legal assistance should be afforded by the Advisory Board must necessarily depend on the facts and circumstances of each individual case and observed: Therefore	 where a detenu makes a request for legal assistance	 his request would have to be considered on its own merit in each individual case. In the present case	 the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board. Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter	 when he was produced before the Advisory Board	 could have	 if he was so minded	 made a request to the Advisory Board for permission to be represented by a lawyer. In that case	 there was no denial of procedural fairness which is a part of the fundamental right guaranteed under article 21 of the Constitution	 since no such request was made by the detenu before the Advisory Board. The decision in Kavita 's case (supra) is	 however	 an authority for the proposition that while there is no right under section 8 (e) of the COFEPOSA Act to legal assistance to a detenu in the proceedings before the Advisory Board	 he is entitled to make such a request to the Board and the Board is bound to consider such a request when so made. In the present case	 the detenu made such a request	 but in the absence of the record of the Advisory Board	 it is not possible to infer whether the request was considered. Even if it was denied	 as the petitioner himself alleges	 there was no rational basis for a differential treatment. There is no denial of the fact that while the detenu was not afforded legal assis 728 tance	 the detaining authority was allowed to be represented by counsel. It is quite clear upon the terms of sub section (4) of section l l of the Act that the detenu had no right to legal assistance in the proceedings before the Advisory Board	 but it did not preclude the Board to allow such assistance to detenu	 when it allowed the State to be represented by an array of lawyers. The matter can be viewed from another angle. We were informed that the Advisory Board did not forward the record of its proceeding to the State Government. If that be so	 then procedure adopted was not in consonance with the procedure established by law. The State Government while confirming the detention order under section 12 of the Act has not only to peruse the report of the Advisory Board	 but also to apply its mind to the material on record itself was not before the State Government	 it follows that the order passed by the State Government under section 12 of the Act was without due application of mind. This is a serious infirmity in the case which makes the continued detention of the detenu illegal. We refrain from expressing any opinion on the other grounds raised. It appears to us prima facie that the grounds for detention set out the facts with sufficient degree of particularity and that they did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority. It seems to us that the order of detention cannot also be challenged that the grounds furnished were vague or indefinite or lacking in particulars or were not adequate or sufficient for the satisfaction of the detaining authority	 or	 for that matter	 for the making of an effective representation. For the reasons stated above	 the order of detention passed by the District Magistrate	 Ropar dated June 1	 1981 is quashed and we direct that the detenu Inderjit alias Billa be set at liberty forthwith. V. D. K. Petition allowed.

Summary:
Inderjit alias Billa has been detained by an order dated June 1	 1981 passed by the District Magistrate under sub section (2) of section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act	 1980 (PBMSECA). The detenu submitted his representation challenging the order of detention on various grounds. He had also made a request in writing that he be allowed the assistance of counsel during the hearing before the Advisory Board	 but the Government did not accede to his request in view of section 11 of the Act. On the contrary. at the time of hearing before the Advisory Board the State was assisted by Public Prosecutor	 two attorneys	 a District Legal Advisor and a Legal Assistant. Even at this stage	 the detenu requested in writing for aid of a counsel but the same was rejected. The State Government confirmed the detention under section 12 of the Act. The father of the detenu	 therefore	 challenges the order of confirmation of the detention by the State. Allowing the writ petition	 the Court. ^ HELD 1:1. Under Article 22(3)(b) of the Constitution	 the right to consult and be defended by a legal practitioner of his choice is denied to any person who is arrested or detained under any law providing for preventive detention. Subsection (3) of section 11 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act	 1980 is undoubtedly in conformity with Article 22(3) (b) of the Constitution. Normally	 lawyers have no place in the proceedings before the Advisory Board. [723 D] 1:2. Upon the terms of sub section (4) of section 11 of the Act the detenu had no right to legal assistance in the proceedings before the Advisory Board but it did not preclude the Board to allow such assistance to the detenu when it allowed the State to be represented by an array of lawyers. Kavita vs The State of Maharashtra & Ors.	 [1982] 1 SCR p. 138 is an authority for the proposition that while there is no right under section 8(e) of the COFEPOSA Act to legal 719 assistance to a detenu in the proceedings before the Advisory Board is entitled to make such a request to the Board and the Board is bound to consider such a request when so made. [727 G H	 728 A B] Smt. Kavita vs The State of Maharashtra & Ors.	 [1982] 1 SCR p. 138 distinguished. The Advisory Board is entitled to devise its own procedure. The functions of the Advisory Board are purely consultative. It is an independent body constituted under section 9 of the Act consisting of a sitting judge as the Chairman and not less than two other members	 who may be sitting or retired judges of the High Court. It is expected that the Advisory Board would set in a fair and impartial manner in making a report whether or not there is	 in its opinion	 sufficient cause for the detention of person. In coming to that conclusion	 the Board has to make an objective determination on the question as to whether there was sufficient material on which the subjective satisfaction of the detaining authority could be based. Under sub section (1) of section 11 of the Act	 the Advisory Board may also call for such further information as it may deem necessary for the appropriate Govt. Or from the person 'concerned and if	 in any particular case	 it considers essential to do so or if the person concerned desires to be heard	 shall hear him in person. Arbitrariness is the very antithesis of Article 14. The principle of reasonableness is an essential element of equality and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. The history of personal liberty is largely the history of procedural safeguards. The need for observance of procedural safeguards	 particularly in cases of deprivation of life and liberty is	 therefore	 of prime importance to the body politic. In the context of 'deprivation of life and liberty ' under Article 21	 the 'procedure established by law ' carried with it the inherent right to legal assistance. The right to be heard before the Advisory Board would be	 in many cases	 of little avail it did not comprehend the right to be heard by the counsel. [723 D G	 725 C D	 F	 726 B C] E.P. Royappa vs Tamil Nadu	 [ 	 Maneka Gandhi vs Union of India. [1978] 2 SCR 621; Francis Coralie Mullin vs The Administrator	 Union Territory of Delhi and Ors. ; at 531; reiterated. The State Government while confirming the detention order under section 12 of the Act has not only to peruse the report of the Advisory Board	 but also to apply its mind to the material on record. If the record itself was not before the State Government as is evident from there turns filed in reply to the writ petition before this Court	 it follows that the order passed by the State Government under section 12 of the Act was without due application of mind	 which is a serious infirmity in the case which makes the continued detention of the detenu illegal. [728 B D] OBlTER: It is expected that Parliament while making a law regulate the procedure before an Advisory Board under Article 22(7) (c) of the Constitution should provide the right to consult and be defended by a legal practitioner of his choice. It is incomprehensible that a person committing a crime should 720 have under Article 22(1) of the Constitution the right to consult and be defended by a legal practitioner of his choice	 but a person under preventive detention more often than not for his political beliefs should be deprived of this valuable right. It cannot be denied that preventive detention is an anachronism in a democratic society like ours. The detention of individuals without trial for any length of time	 however short	 is wholly inconsistent with the basic ideals of a parliamentary system of government. In the nature of things	 under the law as it exists	 a person under preventive detention is not entitled to legal assistance. The matter is essentially political and as such it is the concern of the statesmen and	 therefore	 within the domain of the Legislature	 and not Judiciary. [726 C F]