# Hasnen v. Union of India & Ors

- **Citation:** (2026) 2 ILRA 352
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-26
- **Case number:** Habeas Corpus Writ Petition No. 428 of 2025
- **Bench:** Chandra Dhari Singh, Devendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hasnen-v-union-of-india-ors-54838
- **Pages:** 36

## Text

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352 INDIAN LAW REPORTS ALLAHABAD SERIES
(2026) 2 ILRA 352
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2026

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.
THE HON'BLE DEVENDRA SINGH-I, J.

Habeas Corpus Writ Petition No. 428 of 2025
Connected with other cases

Hasnen ...Petitioner
Versus
Union of India & Ors. ...Respondents

Issue for Consideration
(A) Whether the constitutional and statutory safeguards governing preventive detention, including supply of
relied-upon material, consideration of representations, reference to and opinion of the Advisory Board, and
adherence to prescribed timelines, were duly complied with.
(B) Whether the detaining authority's satisfaction was reached in accordance with law, on relevant and
proximate material, and whether the grounds are precise and sufficient to enable an effective representation
under Article 22(5).
(C) Whether the impugned detention orders are founded on material that legitimately pertains to "public
order", as distinguished from a mere "law and order" situation.

Head Notes
The Constitution of India, 1950-Article 21, 22(1) & 226; The National Security Act, 1980-Section
3, 5A, 8, 10, 11, 12 & 13- No specific grievance of non-supply of relied-upon documents or of
inadequacy of grounds disabling representation has been substantiated before this Court by the
petitioners. The requirements of Section 8 and Article 22(5) are accordingly found to have been
complied with.

The entire chain of statutory safeguards, i.e. from the making of the detention order and its
approval by the State Government, through the communication of grounds, consideration of
representations, reference to and hearing before the Advisory Board, receipt of the Board's
opinion, and final confirmation by the State Government, has been observed in strict compliance
with the timelines and requirements prescribed under Sections 3(4), 3(5), 8, 10, 11, 12 and 13 of
the National Security Act, 1980, and with the constitutional mandate of Article 22(5). The
requisite satisfaction has been independently arrived at by the detaining authority at each stage.
No procedural infirmity has been made out by the petitioners on this count.

The detaining authority's satisfaction was independently and lawfully reached, on relevant and
rationally probative material drawn from a layered chain of field assessments and intelligence
inputs, with a live and proximate link to the apprehended future conduct.

The impugned detention orders are founded on material that legitimately and demonstrably
pertains to "public order". The alleged activity and its aftermath community-wide fear and
behavioural change, inter-community tension, risk of communal violence, extraordinary
administrative response, and a contemporaneous intelligence assessment of public order
collapse collectively establish a disturbance of the even tempo of community life in named
2 All. Hasnen Vs. Union of India & Ors.
353
localities going well beyond an isolated criminal offence. The detaining authority not only had
before it rationally probative material establishing a public order disturbance but also expressly
applied the correct legal test in the grounds themselves. No case has been made out that the
detention orders have been founded on a mere law and order situation dressed up as a public
order concern.

Held- There are no cogent reasons to entertain the petitions and allow the prayers sought therein. In the
aforesaid terms, the petitions stand dismissed. (E-15)
 (Para 61, 68, 89, 107, 110 & 111)

Case Law Cited
Haradhan Saha v. State of W.B (1975) 3 SCC 198; A.K. Roy v. Union of India (1982) 1 SCC 271; Shalini Soni
v. Union of India (1980) 4 SCC 544,; A.K. Gopalan v. State of Madras (1950) SCC 228; R.C. Cooper v. Union
of India (1970) 1 SCC 248; Shibban Lal Saksena v. State of U.P (1953) 2 SCC 617; Rameshwar Shaw v. DM,
Burdwan (1963) SCC OnLine SC 33; Khudiram Das v. State of W.B (1975) 2 SCC 81; Haradhan Saha v. State
of W.B (1975) 3 SCC 198; Rameshwar Shaw v. District Magistrate, Burdwan (1963) SCC OnLine SC 33; Icchu
Devi Choraria v. Union of India (1980) 4 SCC 531; Sunil Fulchand Shah v. Union of India (2000) 3 SCC 409;
Ameena Begum v. State of Telangana (2023) 9 SCC 587; Ram Manohar Lohia v. State of Bihar 1965 SCC
OnLine SC 9; Arun Ghosh v. State of W.B. (1970) 1 SCC 98; Ram Manohar Lohia v. State of Bihar, 1965 SCC
OnLine SC; Kuso Sah v. State of Bihar, (1974) 1 SCC 185;

List of Acts
The Constitution of India, 1950; The National Security Act, 1980

List of Keywords
Habeas corpus; Section 3; Section 8; National Security Act ; Article 22; Public Order Disturbance;
Apprehended future conduct; Requisite satisfaction arrived at by detaining authority at each stage

Case Arising From
The District Magistrate, in exercise of powers under Section 3(2) of the National Security Act, 1980, passed
the detention order dated 28.04.2025

Appearances for Parties
Counsel for Petitioner(s) : Sushil Kumar
Counsel for Respondent(s) : A.S.G.I., G.A., Manish Pandey

(Delivered by Hon'ble Chandra Dhari Singh, J.)

1. Before this Court there are three habeas corpus petitions challenging preventive detention
orders passed under the National Security Act, 1980, arising from an incident of alleged cattle
slaughter in the town of Kalpi, District Jalaun committed, as the detaining authority found, on the
first day of Chaitra Navratri, the very event of Eid. The detaining authority found that this act
shattered public order, created inter-community tension across multiple localities, generated fear
and terror among the general public, and carried within it the very real risk of communal violence.
The petitioners urge that their detention is illegal, that the grounds are insufficient, and that the
matter is at best one of law and order, not public order. The State urges that every constitutional
and statutory safeguard has been complied with and that the detention was a necessary measure to
preserve communal harmony in the area. It is these competing contentions that this Court is called
upon to adjudicate.
354 INDIAN LAW REPORTS ALLAHABAD SERIES

INTRODUCTION

2. Personal liberty is the most elemental of freedoms, the one from which all others draw
breath. Our Constitution, in its profound wisdom, protects it fiercely. Yet the same Constitution,
with equal wisdom, acknowledges that there are moments when the safety of the community
demands that one person's liberty yield to the larger imperative of preserving the peace in which all
others live their lives. Preventive detention is that solemn exception, drastic, exceptional, and never
to be ordinary. It is a power the courts have always viewed with searching scrutiny, for when the
State detains without trial, without proof, and without the presumption of innocence, it must be
held to the strictest account. The constitutional safeguards surrounding preventive detention are not
technicalities to be observed in form alone, they are the thin but firm line between a constitutional
democracy and arbitrary executive power. This Court, as a sentinel of personal liberty, approaches
every habeas corpus petition with that awareness squarely in mind.

3. Yet liberty, however precious, does not exist in a vacuum. A nation as ancient and as
diverse as ours carries within it the constant responsibility of tending to the fragile bonds of
communal co-existence. When an act deliberate in its commission, precise in its timing, strikes at
the deepest religious sentiments of a community at its most sacred moment, it carries within it the
potential to fracture those bonds with swift and devastating effect. The law of preventive detention,
when invoked on proper material and in strict accordance with constitutional safeguards, serves not
merely an administrative purpose but a deeper social one, the preservation of that even tempo of
life that every citizen is entitled to live, undisturbed by those who would exploit communal
sensitivities to foment disorder. It is against this backdrop that this Court proceeds to examine the
legality of the impugned detention orders.

FACTUAL MATRIX

4. The matter has arisen out of the facts as detailed hereunder:

(i) On 31.03.2025, an FIR was lodged at Police Station Kotwali Kalpi, District Jalaun,
registered as Case Crime No. 68 of 2025, under Sections 3/5/8 of the U.P. Prevention of Cow
Slaughter Act, 1955, Section 11 of the Prevention of Cruelty to Animals Act, 1960, and Sections
4/25 of the Arms Act, 1959, against eight accused persons, including the present
petitioners/detenues Sikandar, Saiyyaj Ali, and Hasnen, in relation to the alleged illegal slaughter
of cattle within the jurisdiction of the said police station.

(ii) As per the FIR narrative, the police personnel were on patrolling duty on 30.03.2025.
It is alleged that upon receiving information regarding illegal slaughter by 78 persons between
fields/shrubs, the police party reached the spot and allegedly saw one person filling meat in a
plastic bag and others allegedly engaged in slaughtering animals. It is further alleged that a raid was
conducted and petitioner Sikandar was apprehended, and recovery of a knife and approximately 2-3
quintals of beef/cattle meat was made from Sikandar, and it is further alleged that he disclosed the
names of Saiyyaj Ali and Hasnen.

(iii) It is the petitioners case that the prosecution version is founded primarily on the
statement of the informant and other witnesses, who, as pleaded, are police personnel, and that the
2 All. Hasnen Vs. Union of India & Ors.
355
investigation materials collected (including statements and other documents) formed part of the
record placed before the detaining authority.

(iv) The investigation in Case Crime No. 68 of 2025 culminated in a charge-sheet dated
24.05.2025. Sikandar was remanded to judicial custody on 31.03.2025, whereas Husnen
surrendered before the Chief Judicial Magistrate, Jalaun at Orai on 11.04.2025, and Saiyyaj Ali was
remanded to judicial custody on 04.04.2025.

(v) Saiyyaj was directed to be released on bail vide order dated 21.04.2025 in Criminal
Misc. Bail Application No. 300 of 2025 (Saiyyaj Ali v. State of U.P.). Hasnen was directed to be
released on bail vide order dated 25.04.2025 passed in Criminal Misc. Bail Application No. 313 of
2025 (Hasnen v. State of U.P.). In the case of Sikandar, it is stated that his bail application was
pending in Criminal Misc. Bail Application No. 16469 of 2025.

(vi) In relation to Sikandar, the Circle Officer, Kalpi, District Jalaun submitted a report
dated 23.04.2025 to the Superintendent of Police, Jalaun, and on the same date the Superintendent
of Police forwarded his report to the District Magistrate, Jalaun, whereafter the District Magistrate,
in exercise of powers under Section 3(2) of the National Security Act, 1980, passed the detention
order dated 28.04.2025, which is under challenge in the present petition filed by Sikandar.

(vii) In relation to Saiyyaj Ali, the Circle Officer, Kalpi, District Jalaun submitted a report
dated 26.04.2025 to the Superintendent of Police, Jalaun, and on the same date the Superintendent
of Police forwarded his report to the District Magistrate, Jalaun, whereafter the District Magistrate,
in exercise of powers under Section 3(2) NSA, passed the detention order dated 28.04.2025, which
is under challenge in the petition filed by Saiyyaj Ali.

(viii) In relation to Husnen, the Circle Officer, Kalpi, District Jalaun submitted a report
dated 26.04.2025 to the Superintendent of Police, Jalaun, and on the same date the Superintendent
of Police forwarded his report to the District Magistrate, Jalaun, whereafter the District Magistrate,
in exercise of powers under Section 3(2) NSA, passed the detention order dated 28.04.2025, which
is under challenge in the petition filed by Husnen.

(ix) Prior to the passing of the detention order, a communication dated 03.04.2025 was
issued from the confidential section to the Superintendent of Police, Jalaun, indicating that if the
petitioners were released on bail, they were likely to repeat the alleged offence.

(x) The detention orders dated 25.04.2025 and 28.04.2025 were passed by the District
Magistrate, Jalaun on the basis of reports/inputs of the Station House Officer, Circle Officer,
Additional Superintendent of Police, and Superintendent of Police, District Jalaun.

(xi) A copy of the detention order, the grounds of detention, and all other connected
documents, as received from the District Magistrate, Jalaun, were also forwarded to the Central
Government vide letter dated 05.05.2025.

(xii) Under Section 10 of the NSA, the State Government placed before the Advisory
Board the detention order, grounds on which the order has been made and ancillary material on
05.05.2025. The petitioners submitted representations/replies dated 07.05.2025/08.05.2025 seeking
revocation of the detention orders under the NSA. The same were examined and finally rejected by
the State Government on 20.05.2025/21.05.2025 and communicated on the next day. Copies of the
representations were also placed before the Advisory Board.

(xiii) The U.P. Advisory Board, Lucknow, vide letter dated 26.05.2025, informed the
State Government that the case of the petitioner would be taken up for hearing on 28.05.2025. The
Board further directed that the petitioner be informed that, if he so desired, he could appear before
the U.P. Advisory Board along with a next friend (non-advocate) and, upon request, be
356 INDIAN LAW REPORTS ALLAHABAD SERIES
permitted to take such next friend with him. This intimation was accordingly communicated to the
petitioner through the district authorities by the State Government vide letter dated 26.05.2025. The
petitioner appeared before the U.P. Advisory Board on the date fixed. The U.P. Advisory Board
heard the petitioner in person as well as the Government officials, and thereafter forwarded its
report along with its opinion that there existed sufficient cause for the preventive detention of the
petitioner under NSA.

(xiv) Acting on the said report in exercise of its powers under Section 13 of the Act, the
State Government vide order dated 12.06.2025 confirmed the detention order and directed
continuance of the detention for a period of one year from the date of detention.

(xv) Aggrieved by the detention orders dated 25.04.2025 and 28.04.2025, the petitioners
have approached this Hon'ble Court under Article 226 seeking, inter alia, quashing of the
impugned detention orders and their release.

SUBMISSIONS

Petitioners' Submissions

5. The Petitioners' case, in brief, is that the instant habeas corpus petitions under Article 226
of the Constitution of India have been filed to challenge the detention orders dated 25.04.2025 and
28.04.2025 passed by the District Magistrate, Jalaun under Section 3(2) of the National Security
Act, 1980, whereby the petitioners have been directed to be detained for a period of one year. It is
submitted that the petitioners have been in illegal custody in pursuance of the said order and seek
issuance of a writ of habeas corpus directing that they be set at liberty, along with quashing of the
impugned detention orders.

6. It is stated that an FIR dated 31.03.2025 was lodged at Police Station Kotwali Kalpi,
District Jalaun, registered as Case Crime No. 68 of 2025 under Sections 3/5/8 of the Prevention of
Cow Slaughter Act, Section 11 of the Prevention of Animal Cruelty Act, 1960 and Sections 4/25 of
the Arms Act against the petitioner and seven other co-accused.

7. Learned counsel for the petitioners refers to the contents of the FIR and submits that they
have been falsely implicated in the said case. It is further submitted that the prosecution version is
founded upon the statements of the informant and other witnesses, who, as pleaded, are police
personnel.

8. In the case of Sikander, it is pleaded that he was sent to jail on 31.03.2025 in the
aforementioned case. It is further submitted that Saiyyaj Ali was neither apprehended from the spot
nor anything had been recovered from his possession and had been imprisoned since 04.04.2025;
he was directed to be released on bail vide order dated 21.04.2025 in Criminal Misc. Bail
Application No. 300 of 2025 (Saiyyaj Ali v. State of U.P.). In the case of Hasnen, it is stated that he
surrendered before the Chief Judicial Magistrate, Jalaun at Orai on 11.04.2025 and has remained in
jail since then in connection with the aforesaid case; he was directed to be released on bail vide
order dated 25.04.2025 passed in Criminal Misc. Bail Application No. 313 of 2025 (Hasnen v.
State of U.P.).
2 All. Hasnen Vs. Union of India & Ors.
357

9. It has further been contended that the investigation in Case Crime No. 68 of 2025 has been
completed and a chargesheet has been filed on 24.05.2025. It is also pleaded that the petitioners
have no other criminal history apart from the aforesaid case.

10. So far as the detention proceedings are concerned, it is stated that the Station House
Officer submitted a report to the Superintendent of Police regarding detention of the petitioner
under the National Security Act. It is further stated that the Circle Officer and the Additional
Superintendent of Police also submitted reports to the Superintendent of Police, who then
forwarded a Report to the District Magistrate for passing an order under Section 3(2) of the Act,
pursuant to which the District Magistrate passed the impugned detention order(s) dated 25.04.2025
and 28.04.2025.

11. On the basis of the above pleadings, learned counsel for the Petitioners submit that the
detention orders are bad in the eye of law. It is further pleaded that the impugned order(s) has been
passed without due application of mind. Learned counsel for the Petitioners also alleges violation
of the principles of natural justice and infringement of Articles 14 and 19 of the Constitution of
India.

12. Accordingly, it is prayed that this Hon'ble Court may be pleased to issue a writ of habeas
corpus directing the respondents to set the petitioner at liberty and to quash the detention order(s)
dated 25.04.2025 and 28.04.2025 passed by the District Magistrate, Jalaun under Section 3(2) of
the National Security Act, 1980.

Respondents' Submissions

13. Learned counsels for the respondents/State submit that an FIR dated 31.03.2025 was
registered as Case Crime No. 68 of 2025 at Police Station Kotwali Kalpi, District Jalaun, under
Sections 3/5/8 of the U.P. Cow Slaughter Act, 1955, Section 11 of the Prevention of Cruelty to
Animals Act, 1960, and Sections 4/25 of the Arms Act, 1959, against eight accused persons
including the petitioners/detenues Sikandar, Saiyyaj Ali and Hasnen. It is stated that Sikandar is in
judicial custody since 31.03.2025, Saiyyaj Ali since 04.04.2025, and Hasnen since 11.04.2025 in
the aforesaid case. After investigation, the charge-sheet has been submitted against the accused
persons including the petitioners/detenues.

14. It has been submitted that a substantial quantity of beef (about three quintals) was
recovered, and cattle were found tied as well as bones/skin/weapons were also recovered. One
detenue was apprehended at the spot while the others fled. The incident, having regard to its extent
and local impact, caused fear and tension in and around the area and disturbed communal harmony,
thereby impacting public order, not merely law and order.

15. The detaining authority/District Magistrate, Jalaun passed separate detention orders under
Section 3 (2) of the National Security Act, 1980 against the petitioners/detenues. Learned counsels
for the Respondents stated that the said detention orders were approved by the State Government
on 03.05.2025 within the period prescribed under Section 3(4) of the Act, 1980.
358 INDIAN LAW REPORTS ALLAHABAD SERIES

16. It is submitted that the matter was placed before the U.P. Advisory Board, Lucknow. The
detenues were informed to appear before the Advisory Board along with a next friend. The
detenues appeared in person and were heard on 28.05.2025. The Advisory Board thereafter opined
that sufficient cause exists for preventive detention of the petitioners under the National Security
Act, 1980. The State Government received the Advisory Boards report/opinion on 05.06.2025
within the time contemplated under Section 11(1) of the Act, 1980, and upon independent
reconsideration of the entire material, the State Government confirmed the detention orders for
twelve months from 25.04.2025 under Sections 12 and 13 of the National Security Act, 1980.

17. It is stated that the grounds of detention disclose the incident and the activities attributed to
each detenue separately. The detaining authority has recorded satisfaction, on the basis of cogent
material, that (i) the detenues were attempting to secure bail and there was a real possibility of their
release, and (ii) upon release, they were likely to indulge in activities prejudicial to the maintenance
of public order.

18. It is submitted that the entire procedure applicable to preventive detention has been duly
complied with. The detention orders, grounds of detention and relied upon materials were duly
served. The detenues submitted representations dated 08.05.2025, which were processed within
reasonable time as reflected in the respective counter affidavits. It is stated that the representations
of Saiyyaj Ali and Hasnen were rejected on 20.05.2025, and that of Sikandar was rejected on
21.05.2025, followed by communication to the detenues.

19. In view of the foregoing, it was submitted that the detention orders are based on relevant
material and contain specific grounds. There is no material indicating mala fides or vagueness. The
subjective satisfaction recorded by the detaining authority, being founded on cogent material, is not
open to interference in habeas jurisdiction except on well-settled grounds, which are not made out
herein.

20. Thus, it was prayed by learned counsels appearing for the Respondents that in view of the
aforesaid facts and the statutory compliance at every stage, and considering the Advisory Boards
opinion and the material demonstrating disturbance of public order, the State respectfully submits
that the present habeas corpus petitions are devoid of merit and liable to be dismissed.

21. During the course of the submissions, the learned counsels appearing for the Respondents
placed reliance on plethora of judgments including:

Pesala Nookaraju v. Government of Andhra Pradesh

Kartik Chandra Guha v. State of West Bengal

Alijan Mian v. District Magistrate, Dhanbad

Yofendra Muraari v. State of U.P.

N. Meera Rani v. Government of Tamil Nadu

Arun Ghosh v. State of West Bengal

Raisuddin alias Babu Mamchi

Ashok Kumar v. Delhi Administration

Dr. Ram Manohar Lohia v. State of Bihar
2 All. Hasnen Vs. Union of India & Ors.
359

Hetchin Haokip v. State of Manipur

A. Maimoona v. State of Tamil Nadu

22. Heard Mr. Sunil Kumar, learned counsel for the petitioners, Mr. Manish Pandey, learned
counsel appearing on behalf of respondent no. 2, Mr. S.K. Ojha, learned Additional Government
Advocate appearing on behalf of the State of U.P. and perused the material on record.

PREVENTIVE DETENTION & JUDICIAL REVIEW

23. Prior to adverting to the questions for consideration, and before examining the legality of
the impugned detention orders, this Court deems it apposite to recapitulate the settled principles
governing preventive detention, namely, the object and rationale for which such extraordinary
power may be invoked, the essential requirements that must inform and sustain a valid detention
order, and the limited but strict contours of judicial review in habeas corpus over such executive
satisfaction.

Concept of Preventive Detention

24. The essential defining feature of preventive detention is that the restraint is not imposed to
punish a person for what he has already done, but to prevent him from doing so in future. The
foundation of such detention is the executive's satisfaction, on the basis of relevant material, that
there exists a reasonable probability of the detenu acting in a manner akin to his past conduct, and
that his detention is necessary to forestall such anticipated conduct. In cases of preventive
detention, the past act is merely the material for inference about the future course of probable
conduct on the part of the detenu. Preventive detention is not to punish an individual for any wrong
done by him, but by curtailing his liberty, with a view to preventing him from committing certain
injurious activities in future. Preventive detention is thus preventive, and not punitive.

25. Proceedings in a court of law and an order of detention under the 1980 Act operate in
distinct fields: the former is punitive, while the latter is preventive. In prosecution, punishment
follows only upon proof of guilt, tested against the standard of proof beyond reasonable doubt; in
preventive detention, the restraint is imposed with a view to preventing the commission of acts of
the nature contemplated by the statute authorising such detention.

26. Preventive detention is thus qualitatively different from punitive detention. It is a
precautionary power exercised in reasonable anticipation, and may or may not be linked to a
specific offence. It is neither a substitute for, nor a parallel to, criminal prosecution, and does not
overlap with it merely because it may draw upon certain facts that could also furnish the basis for
prosecution. A preventive detention order may be made prior to, or during, prosecution; it may be
made with or without prosecution; and it may even be made in anticipation of, or after, discharge or
acquittal. The pendency of prosecution is no impediment to the making of a preventive detention
order, just as a detention order does not operate as a bar to prosecution.

27. Article 22(1) and (2) of the Constitution guarantee protection to a person against arbitrary
arrest, except under a warrant issued by a court of law, and are vital and fundamental for
360 INDIAN LAW REPORTS ALLAHABAD SERIES
safeguarding personal liberty. Nonetheless, the protection so guaranteed is subject to clause (3) of
Article 22 which operates as an exception to clauses (1) and (2) and ordains that nothing therein
shall apply to, inter alia, any person who is arrested or detained under any law providing for
preventive detention. The purpose of preventive detention, as delineated in Haradhan Saha v.
State of W.B.12, is to prevent the greater evil of elements imperilling the security and safety of a
State, and the welfare of the Nation. Preventive detention, though a draconian and dreaded
measure, is permitted by the Constitution itself however with the rider of safeguards as inherent in
the text of the said article itself, and with the riders carved out by the constitutional courts through
judicial decisions which have stood the test of time.

28. It is well settled that the executive may resort to preventive detention on the basis of
reasonable suspicion and as a precautionary measure, to avert anticipated acts by the proposed
detenu which are prejudicial to the specified statutory objects under a validly enacted law. Since a
preventive detention order entails a serious curtailment of personal liberty on suspicion, is
preventive rather than punitive in character, and since the subjective satisfaction of the detaining
authority, founded on the material before it, is not ordinarily amenable to judicial scrutiny on
merits, constitutional courts do not sit in appeal over whether such satisfaction has been correctly
reached on each factual aspect or whether the detention is justified on a reappreciation of facts. The
scope for granting relief is therefore necessarily confined. Precisely for this reason, it is imperative
that such an extraordinary and drastic power is invoked only in appropriate cases and exercised
with due responsibility, rationality, and reasonableness.

29. At the same time, having regard to the grave consequence of deprivation of liberty under a
preventive detention order, often enforced without affording the detenu an opportunity to present
his case beforehand, constitutional courts, as sentinel on the qui vive, have consistently intervened
to set aside detention orders whenever they are found to suffer from any legally recognized
infirmity within the limited ambit of judicial review.

Writ of Habeas Corpus

30. The ancient prerogative writ of habeas corpus takes its name from the two mandatory
words "habeas" and "corpus". "Habeas Corpus" literally means "have the body". The general
purpose of these writs as their name indicates was to obtain the production of the individual before
a court or a Judge. This is a prerogative process for securing the liberty of the subject by affording
an effective relief of immediate release from unlawful or unjustifiable detention, whether in prison
or in private custody. This is a writ of such a sovereign and transcendent authority that no privilege
of power or place can stand against it. It is a very powerful safeguard of the subject against
arbitrary acts not only of private individuals but also of the executive, the greatest safeguard for
personal liberty, according to all constitutional jurists. The writ is a prerogative one obtainable by
its own procedure.

31. In Halsbury's Laws of England, it is stated as under:

"The writ of habeas corpus ad subjiciendum" unlike other writs, is a prerogative writ,
that is to say, it is an extraordinary remedy, which is issued upon cause shown in cases where the
2 All. Hasnen Vs. Union of India & Ors.
361
ordinary legal remedies are inapplicable or inadequate. This writ is a writ of right and is granted
ex debito justitiae. It is not, however, a writ of course. Both at common law and by statute, the writ
of habeas corpus may be granted only upon reasonable ground for its issue being shown. The writ
may not in general be refused merely because an alternative remedy by which the validity of the
detention can be questioned. "Any person is entitled to institute proceedings to obtain a writ of
habeas corpus for the purpose of liberating another from an illegal imprisonment and any person
who is legally entitled to the custody of another may apply for the writ in order to regain custody.
In any case, where access is denied to a person alleged to be unjustifiably detained, so that there
are no instructions from the prisoner, the application may be made by any relation or friend on an
affidavit setting forth the reason for it being made."

32. In Corpus Juris Secundum, the nature of the writ of habeas corpus is summarised thus:

"The writ of habeas corpus is a writ directed to the person detaining another,
commanding him to produce the body of the prisoner at a designated time and place with the day
and cause of his caption and detention to do, submit to, and receive whatsoever the court or Judge
awarding the writ shall consider in that behalf." "Habeas corpus" literally means "have the body".
By this writ, the court can direct to have the body of the person detained to be brought before it in
order to ascertain whether the detention is legal or illegal. Such is the predominant position of the
writ in the Anglo-Saxon Jurisprudence."

33. In England, the jurisdiction to grant a writ existed in Common law, but has been
recognised and extended by statute. It is well established in England that the writ of habeas corpus
is as of right and that the court has no discretion to refuse it. Unlike certiorari or mandamus, a writ
of habeas corpus is as of right to every man who is unlawfully detained. In India, it is this
prerogative writ which has been given a constitutional status under Articles 32 and 226 of the
Constitution. Therefore, it is an extraordinary remedy available to a citizen of this Country, which
he can enforce under Article 226 or under Article 32 of the Constitution of India.

34. It is the duty of the Writ Courts to issue this writ to safeguard the freedom of the citizen
against arbitrary and illegal detention. Habeas corpus is a remedy designed to facilitate the release
of persons detained unlawfully, not to punish the detaining person and it is not, therefore, issued
after the detention complained of has come to an end. It is a remedy against unlawful detention. It
is issued in the form of an order calling upon the person who has detained another, whether in
prison or in private custody, to "have the body" of that other before the Court in order to let the
Court know on what ground the latter has been confined and thus to give the Court an opportunity
of dealing with him as the law may require. By the writ of habeas corpus, the Court can cause any
person who is imprisoned to be brought before the Court and obtain knowledge of the reason why
he is imprisoned and then either set him free then and there if there is no legal justification for the
imprisonment, or see that he is brought speedily to trial. Habeas corpus is available against any
person who is suspected of detaining another unlawfully and not merely against the police or other
public officers whose duties normally include arrest and detention. The Court must issue it if it is
shown that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ
be addressed to any person whatever an official or a private individual who has another in his
custody.
362 INDIAN LAW REPORTS ALLAHABAD SERIES

35. A writ of habeas corpus is simply a judicial command directed to a specific jailer directing
him or her to produce the named prisoner together with the legal cause of detention in order that
this legal warrant of detention might be examined. The said detention may be legal or illegal. The
right which is sought to be enforced by such a writ is a fundamental right of a citizen conferred
under Article 21 of the Constitution of India, which provides: "21. Protection of life and personal
liberty. No person shall be deprived of his life or personal liberty except according to procedure
established by law."

Scheme & Relevant Provisions under the National Security Act, 1980

36. The relevant provisions of the National Security Act, 1980 ("NSA") are set out in the
following paragraphs, so as to indicate both the purpose and scheme of preventive detention under
the statute, and the statutory safeguards that condition the exercise of such extraordinary power.
The Long Title and Statement of Objects and Reasons show that the Parliament conceived the NSA
as an exceptional measure to address grave situations affecting defence, security, public order, and
essential supplies/services, while simultaneously embedding institutional checks through
Governmental scrutiny and Advisory Board oversight. The Long Title & Statement of Objects &
Reasons of the National Security Act, 1980 is extracted hereunder:

"An Act to provide for preventive detention in certain cases and for matters connected
therewith

Be it enacted by Parliament in the Thirty-first year of the Republic of India as follows:-

Statement of Objects and Reasons.-In the prevailing situation of communal disharmony,
social tensions, extremist activities, industrial unrest and increasing tendency on the part of
various interested parties to engineer agitation on different issues, it was considered necessary that
the law and order situation in the country is tackled in a most determined and effective way. The
anti-social and anti-national elements including secessionist communal and pro-caste elements and
also other elements who adversely influence and affect the services essential to the community pose
a grave challenge to the lawful authority and sometimes even hold the society to ransom.

2. Considering the complexity and nature of the problems, particularly in respect of
defence, security, public order and services essential to the community, it is the considered view of
the Government that the administration would be greatly handicapped in dealing effectively with
the same in the absence of powers of preventive detention. The National Security Ordinance, 1980,
was, therefore, promulgated by the President on September 22, 1980.

3. Subject to a modification, the Bill seeks to replace the aforesaid Ordinance. The
modification relates to the composition of Advisory Boards, and is for providing that the Chairman
of an Advisory Board shall be a person who is, or has been, a Judge of a High Court and the other
members of the Advisory Board may be persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court."

37. Section 3 is the substantive source of the NSAs preventive detention power. It authorises
the Central/State Government to order detention on specified grounds, and under Section 3(2)
specifically, where detention is considered necessary to prevent a person from acting prejudicially
to the security of the State, the maintenance of public order, or the maintenance of supplies and
services essential to the community. The State Government may further delegate this power to a
2 All. Hasnen Vs. Union of India & Ors.
363
District Magistrate/Commissioner of Police for limited periods under Section 3(3). Where an
officer so empowered makes a detention order, Section 3(4) mandates prompt reporting to the State
Government and makes the order short-lived unless approved within the prescribed time; Section
3(5) thereafter requires reporting to the Central Government within the stipulated period. Section 3
is extracted hereunder for reference:

"3. Power to make orders detaining certain persons.-(1) The Central Government or the
State Government may,-

(a) if satisfied with respect to any person that with a view to preventing him from acting
in any manner prejudicial to the defence of India, the relations of India with foreign powers, of the
security of India, or

(b) if satisfied with respect of any foreigner that with a view to regulating his continued
presence in India or with a view to making arrangements for his expulsion from India,

it is necessary so to do, make an order directing that such person be detained.

(2) The Central Government or the State Government may, if satisfied with respect to any
person that with a view to preventing him from acting in any manner prejudicial to the security of
the State or from acting in any manner prejudicial to the maintenance of public order or from
acting in any manner prejudicial to the maintenance of supplies and services essential to the
community it is necessary so to do, make an order directing that such person be detained.

Explanation.-For the purposes of this sub-section, "acting in any manner prejudicial to
the maintenance of supplies and services essential to the community" does not include "acting in
any manner prejudicial to the maintenance of supplies of commodities essential to the community"
as defined in the explanation to sub-section (1) of Section 3 of the Prevention of Blackmarketing
and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no
order of detention shall be made under this Act on any ground on which an order of detention may
be made under that Act.