# ADDITIONAL SECRETARY TO THE GOVERNMENT OF INDIA AND ORS v. SMT. ALKA SUBHASH GADIA AND ANR

- **Citation:** [1990] Supp. 3 S.C.R. 583
- **Court:** Supreme Court of India
- **Decided:** 1990-12-20
- **Case number:** Criminal appeals Nos. 440-441of1989
- **Bench:** A.M. Ahmadi, P.B. Sawant, S.C. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/additional-secretary-to-the-government-of-india-and-ors-v-smt-alka-subhash-10853
- **Pages:** 31

## Headnote

Constitution of India, 1950: Articles 14, 19, 21 and 22-Liberty
of a person-Deprival of-Whether permissible without apprising
grounds of arrest-Whether State required to disclose facts in advance.
Articles 32 and 226--Jurisdictionary powers of judicial reviewWhether Courts could refuse to exercise-Non-interference with the
termination order at pre-execution stage-Whether amounts to abandonment of power and denial to the proposed detenu remedy of judicial
review and right to challenge the order.
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974: Section 3( /)-Detention order-Whether could be
challenged before arrest of proposed detenu-Whether proposed detenu
A
B
c
D
or somebody on his behalf entitled to the order prior to its execution at
least to verify whether it could be challenged on limited grounds
available-Whether the order and grounds to be served on the proposed
E
detenu in advance.
An order of detention passed against the first respondent's
husband under Section 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 could not be served on
the proposed detenu as he was absconding. Hence a declaration was
F
made that he was a person who fell within the category mentioned in
Section 2(b) of the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976. Thereafter, a notice was issued to
him under sub-section (1) of section 6 of the SAFEMA to show cause as
to why the properties mentioned in the schedule to the notice should not
be forfeited to the Central Government. A copy of the notice along with G
the schedule and the copy of the reasons for forfeiture was also sent to
the first respondent.
The first respondent filed writ petition in the High Court challenging the detention order as well as the show cause notice. 1'he High
Court held that the writ petition was maintainable for challenging the H
583
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c
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584
SUPREME COURT REPORTS
[ 1990] Supp. 3 S.C.R.
detention order even though the detenu was not served with the order
and had thus not surrendered to the authorities, that the detention
order, the grounds of detention, and the documents relied upon for
passing the detention order be furnished to the detenu, and to the
counsel for the first respondent and that they should also be produced
before the court.
A day before the matter was to come for directions an affidavit
was filed on behalf of the appellants stating that under Article 22( 5) of
the Constitution the grounds of detention had to be given to the person
when he was detained, and therefore, the detaining authority could not
be compelled to furnish the documents to anybody else other than the
detenu, after he was detained. However, the authority was willing to
produce the documents for the perusal of the Court without showing them
first to the first respondent. Finding that the appellants had not made any
application for any extension in time to carry out the orders of the
Court, nor made any statement expressing their difficulty to comply
with the order, the High Court held that the officers were guilty of
contempt of court, and directed the matter to be listed for taking
appropriate action for contempt of court. At that stage, Special Leave
Petitions were filed before this Court.
It was contended on behalf of the appellants that since the detention law was constitutionally valid, the order passed under it could be
challenged only in accorJance with the provisions of, and the procedure
laid down, by it, and the High Court and this Court should not exercise
their extraordinary jurisdiction in a manner which would enable a
party to by-pass the machinery provided by the law, that unlike the
order passed under other laws, the detention order if stayed or not
allowed to be executed would be frustrated and the very object of the
detention law would be defeated, and therefore, the detention order
should in no case be allowed to be challenged before it was executed an

## Text

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...
ADDITIONAL SECRETARY TO THE GOVERNMENT OF
INDIA AND ORS .
v.
SMT. ALKA SUBHASH GADIA AND ANR.
DECEMBER 20, 1990
[A.M. AHMADI, P.B. SAWANT AND S.C. AGRAWAL, JJ.]
Constitution of India, 1950: Articles 14, 19, 21 and 22-Liberty
of a person-Deprival of-Whether permissible without apprising
grounds of arrest-Whether State required to disclose facts in advance.
Articles 32 and 226--Jurisdictionary powers of judicial reviewWhether Courts could refuse to exercise-Non-interference with the
termination order at pre-execution stage-Whether amounts to abandonment of power and denial to the proposed detenu remedy of judicial
review and right to challenge the order.
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974: Section 3( /)-Detention order-Whether could be
challenged before arrest of proposed detenu-Whether proposed detenu
A
B
c
D
or somebody on his behalf entitled to the order prior to its execution at
least to verify whether it could be challenged on limited grounds
available-Whether the order and grounds to be served on the proposed
E
detenu in advance.
An order of detention passed against the first respondent's
husband under Section 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 could not be served on
the proposed detenu as he was absconding. Hence a declaration was
F
made that he was a person who fell within the category mentioned in
Section 2(b) of the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976. Thereafter, a notice was issued to
him under sub-section (1) of section 6 of the SAFEMA to show cause as
to why the properties mentioned in the schedule to the notice should not
be forfeited to the Central Government. A copy of the notice along with G
the schedule and the copy of the reasons for forfeiture was also sent to
the first respondent.
The first respondent filed writ petition in the High Court challenging the detention order as well as the show cause notice. 1'he High
Court held that the writ petition was maintainable for challenging the H
583
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584
SUPREME COURT REPORTS
[ 1990] Supp. 3 S.C.R.
detention order even though the detenu was not served with the order
and had thus not surrendered to the authorities, that the detention
order, the grounds of detention, and the documents relied upon for
passing the detention order be furnished to the detenu, and to the
counsel for the first respondent and that they should also be produced
before the court.
A day before the matter was to come for directions an affidavit
was filed on behalf of the appellants stating that under Article 22( 5) of
the Constitution the grounds of detention had to be given to the person
when he was detained, and therefore, the detaining authority could not
be compelled to furnish the documents to anybody else other than the
detenu, after he was detained. However, the authority was willing to
produce the documents for the perusal of the Court without showing them
first to the first respondent. Finding that the appellants had not made any
application for any extension in time to carry out the orders of the
Court, nor made any statement expressing their difficulty to comply
with the order, the High Court held that the officers were guilty of
contempt of court, and directed the matter to be listed for taking
appropriate action for contempt of court. At that stage, Special Leave
Petitions were filed before this Court.
It was contended on behalf of the appellants that since the detention law was constitutionally valid, the order passed under it could be
challenged only in accorJance with the provisions of, and the procedure
laid down, by it, and the High Court and this Court should not exercise
their extraordinary jurisdiction in a manner which would enable a
party to by-pass the machinery provided by the law, that unlike the
order passed under other laws, the detention order if stayed or not
allowed to be executed would be frustrated and the very object of the
detention law would be defeated, and therefore, the detention order
should in no case be allowed to be challenged before it was executed and
the detenu was taken in custody; besides the detention jurisdiction
being essentially a suspicion jurisdiction, the concept of complete
justice was alien to detention law; the liberty guaranteed by Article 21
of the Constitution was subject to the provisions of Article 22 and,
therefore, in a detention matter the provisions of the two Articles could
not be separated; so long as the detention law was intra-vires the Constitution, and it stated that the detenu should be informed of the
grounds of his detention only after he lost his liberty, the detenu conld
not by resort to Article 226, by-pass the provisions of that law or invite
the High Court to do so and secure the grounds before submitting to the
order; the detention law in question had not taken away the judicial
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA
585
review of the order passed under it, but only postponed it by implicaA
lion and the Courts had done so by a self-regulated procedure consistent with the object of the law; and the judicial review under the detention law had to be post-decisional, that the law by itself did not place
any restriction on the writ-jurisdiction of the Court; and the restriction
exercised by the Court was self-imposed and was not inconsistent with
the basic structure of the Constitution.
B
On behalf of the respondent it was contended, that Article 22 was
an additional protection ofliberty which was guaranteed by Articles 14,
19, and 21 of the Constitution; an individual had an absolute right to
liberty and, therefore, the burden was on the State to satisfy that the
deprivation of the liberty was necessary in the interests of the general
C
public, security of the State, public order etc. before apprising him of
the grounds of his arrest; and consequently, it must place all its cards
before the Court before his arrest, particularly when he approached the
Court making a grievance against the order; that the extent of the right
to life and liberty under Article 21 of the Constitution had been
expanded by this Court to include not only the right to live but also the
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right to live with dignity, which was affected the moment the person lost
his liberty before knowing the reasons for the same or having an
opportunity to challenge them; a person could be deprived of his life
and liberty only under a valid law which laid down a fair procedure for
deprivation of the liberty of the individual; and the State could not be
said to have adopted a fair procedure for arrest of a person when it
E
refused to disclose the facts on the basis of which it proposed to arrest
him; and that judicial review being a part of the basic structure of the
Constitution the power of the High Court under Article 226 of the
Constitution could not be circumscribed in any way by any law, including detention law; and as such it could be challenged at any stage, and
the artificial distinction between pre-decisional and post-decisional
F
challenge was inconsistent with and alien to, the wide powers conferred
under Articles 32 and 226 of the Constitution, and that this Court had
in fact, interfered with the detention orders before the detenus had
submitted to them.
Allowing the appeals, this Court,
G
HELD: 1.1. It is well settled that the fundamental rights under
Chapter III of the Constitution are to be read as a part of an integrated
scheme. They are not exclusive of each other but operate, and are,
subject to each other. The action complained of must satisfy the tests of
all the said rights so far as they are applicable to individual cases. In
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SUPREME COURT REPORTS
[ 1990] Supp. 3 S.C.R.
particular, Article 22(5) is not the sole repository of the detenu's rights.
His rights are also governed hy the other fundamental rights, particularly those enshrined in Articles 14, 19, and 21. Hence, while examining
action resulting in the deprivation of the liberty of any person, the
limitations on such action imposed hy the other fundamental rights,
where and to the extent applicable have to he borne in mind. [592F-G, 593B]
Rustom Cavasjee Cooperv. Union of India, [1970] 3 SCR 530 and
Maneka Gandhi v. Union of India, [1978] 2 SCR 621, relied on.
1.2 While Article 21 permits the State to deprive a person of his
life or personal liberty, provided it is done strictly according to procedure established hy law, this permission is expressly controlled by Article 22 in cases both of punitive and preventive detention. By law or
procedure is, of course, meant validly enacted law or procedure. Thus,
the provisions of Articles 21 and 22 read together, make it clear that a
person can he deprived of his life or personal liberty according to procedure established by law, and if the law made for the purpose is valid,
D
the person who is deprived of his life or liberty has to challenge his
arrest or detention, as the case may be, according to the provisions of
the law under which he is arrested or detained. [593C-D, 594DJ
1.3 Therefore, in the face of the clear provisions of the Constitution and of the valid Act, it is not open to contend that the provisions of
E
Articles 14, 19 and 21 of the Constitntion prevent a person being
deprived of his liberty without first apprisb1g him of the grounds of his
arrest, and that since the State has all the facts in its possession which
require the arrest and detention of the person, it most first disclose the
said facts before depriving him of his liberty. The provisions of Article
22 of the Constitution and of the Act made thereunder permit the State
F
to arrest and detain a person without first disclosing the grounds, even
though they are in its possession before or at the time of his arrest. I 608F -G]
1.4 However vital and sacred the liberty of the individual, the
responsible framers of the Constitution, although fully conscious of its
implications, have made a provision for making a law which may depG
rive an individual of his liberty without first disclosing to him the
grounds of such deprivation. I 609D)
2.1 Denial of the right to the proposed detenu to challenge the
detention order and the grounds on which it is made before he is taken
in custody does not amount to denial of remedy of judicial review of the
H order because there is a difference between the existence of power and
its exercise. [609E-F]
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA
587
2.2 Neither the Constitution, including the provisions of Article
22 thereof, nor the COFEPOSA place any restriction on the powers of
the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untram·
melled by any external restrictions, and can reach any executive order
resulting in civil or criminal consequences. However, the Courts have
over the years evolved certain self-restraints for exercising these
powers. They have done so in the interests of the administration of
justice and for better and more efficient and informed exercise of the
said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the
orders passed and decisions made under all laws. [609G-H, 610A]
2.3 It is in pursuance of this self-evolved judicial policy and. in
conformity with the self-imposed internal restrictions that the Courts
insist that the aggrieved person first allow the due operation and
implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke
their discretionary extraordinary and equitable jurisdiction under Arti·
cles 226 and 32 respectively. That jurisdiction by its very nature is to be
used sparingly and in circumstances where no other efficacious remedy
is available. If in every case a detenu is pennltted to challenge and seek
the stay of the operation of the order before it is executed, the very
purpose of the order and of the law under which it is made will be
frustrated since such orders are in operation only for a limited period.
The court~ have the necessary power to entertain grievances against any
detention order prior to its execution, and they have used it in proper
cases, although such cases have been few and the grounds on which the
courts have interfered with them are necessarily very limited in scope
and number, viz., where the courts are prima facie satisfied (i) that the
order is not passed under the Act under which it is purported to have
been passed, (ii) that it is sought to be executed against a wrong person,
(iii) that it is passed for a wrong purpose, (iv) that it is passed on vague,
extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their
extraordinary powers of judicial review to interfere with the detention
orders prior to their execution on any other ground does not amount to
abandonment of the said pliwer or to their denial to the proposed
detenu, but prevents their abuse and the perversion of the law. It is
always open for the detenu or anyone on bis behalf to challenge the
detentfon 11rder by way of habeas corpus petition on any ground avail·
able to him. [610A-H]
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SUPREME COURT REPORTS
[1990] Supp. 3 S.C.R.
2.4 The judicial review of the detention order is always available.
This applies also to the cases under other laws. But in a detention case,
the stage at which the judicial review is made by the Court only stands
deferred till after the order is executed. A ground on which a detention
order is challenged which requires investigation and cannot be
adjudicated without hearing the other side and without proper material, has necessarily to await decision till the final hearing. In snch cases
the operation of the order of detention by its very nature cannot be
stayed pending the final outcome. The only proper conrse in such cases
is to hear the petition as expeditiously as possible. [611A-B]
3. The detenu is not entitled to the order of detention prior to its
execution even to verify whether it can be challenged at its preexecution stage on the limited grounds available, for the reasons that (1)
the Constitution and valid law made thereunder do not make any provision for the same. On the other hand, they permit the arrest and detention of a person without furnishing to the detenu the order and the
grounds thereof in advance, (2) when the order and the grounds are
D served and the detenu is in a position to make out prima facie the
limited grounds on which they can be successfully challenged, the
courts, have power even to grant bail to the detenu pending the final
hearing of his petition. Alternatively, the Conrt can and does hear such
petition expeditiously to give the necessary relief to the detenu. (3) In
the rare cases where the detenu before being served with them learns of
E the detention order and the gronnds on which it is made, and satisfies
the Court of their existence by proper affirmation, the Court does not
decline to entertain the writ petition even at the pre-execution stage, of
course, on the very limited grounds stated above, though the Court,
even in such cases, is not obliged to interfere with the order at that stage
F
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and may insist that the detenu should first submit to it. It will, however,
depend on the facts of each case. Thus, the courts have power to
interfere with the detention orders even at the pre-execution stage but
they are not obliged to do so nor will it be proper for them to do so save
in exceptional cases. Much less can a detenu claim snch exercise of
power as a matter of right. The discretion is of the Court and it has to be
exercised judicially on well-settled principles. [611C-HJ
In the Instant case, the proposed ·detenu is absconding and had
been evading the service of the detention order. The first respondent
who is his wife has sought to challenge the said order because the
show-cause notice under sub-section (1) of Section 6 of the SAFEMA
was issued to him, a copy of which is also seut to her. Thus, the assisH lance of the High Court under Article 226 of the Constitution is sought
...
•
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA
589
by the first respondent on behalf of the detenu to secure the detention
order with a view to defend the proceedings under the SAFEMA. In
other words, the proposed detenu is trying to secure the detention order
indirectly without submitting to it. Moreover, he is also trying to secure
the grounds of detention as well as the documents supporting them
which he cannot get unless he submits to the order of detention. No
prima facie case is made out for challenging the detention order, which
would impel the Court to interfere with it at this pre-execution stage.
The High Court, disregarding the law on the subject and the longsettled principles on which alone it can interfere with the detention
order at pre-execution stage, has directed the authorities not only to
furnish to the detenu the order of detention but also the grounds of
detention and the documents relied upon for passing the detention
order. [612B-EJ
In the circumstances, both the orders of the High Court directing
A
B
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the appellants to furnish to the detenu or to the first respondent or her
counsel the order of detention, the grounds of detention and the docu' 0
meuts supporting them as well as the contempt notice are clearly illegal
and unjustified and they are accordingly quashed. [613E-F]
Special Reference No. I of 1964 [1965] I SCR 492; Dwarkanath,
Hindu Undivided Family v. Income-Tax Officer, Special Circle,
Kanpur & Anr., [1965] 3 SCR 536; State of Bihar v. Rambalak Singh
E
"Balak" & Ors., AIR 1966 SC 1441; Khudiram Das v. The State of West
Bengal & Ors., [1975] 2 SCR 832 at 842; Francis Coralie Mullin v.
Administrator, Union Territory of Delhi & Ors., [1981] SCC 608; Smt.
Poonam Lata v. M.L. Wadhwan & Ors., [1987] II SCR. 1123 and
S.M.D. Kiran Pasha v. The Government of Andhra Pradesh & Ors.,
JT (1989) 4 SC 366, referred to.
Minerva Mills Ltd. v. Union of India & Ors., [1981] l SCR 206;
S.P. Sampath Kumar v. Union of India & Ors., [1987] l SCC·l24 and
P. Sambamurthy & Ors. v. State of Andhra Pradesh & Anr., [1987] 1
sec 362, referred to.
Jayantilal Bhagwandas Shah etc. v. State of Maharashtra, [1981] l
Cr. LJ 767; Abdul Aziz Mohammad v. Union of India, [1984] Cr. LJ
1307; Omar Ahmed Ebrahim Noormani v. Union of India & Ors.,
[1984] Cr. W. 1915; Yogesh Shanti/al Choksi v. Home Secretary,
Government of Kera/a & Anr .. [1983] Cr. LJ 393 and Simmi v. State of
F
G
U.P. & Ors., [1985] All. LJ 598, referred to.
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SUPREME COURT REPORTS
[1990] Supp. 3 S.C.R.
A
CRIMINAL APPELLATE JURISDICTION: Criminal appeals
Nos. 440-441of1989.
B
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From the Judgment and Order dated 27.6.89 & 30.6.89 of the
Bombay High Court in Crl. W. P. No. 489 of 1989 & Crl. Application
No. 1347 of 1989.
Kapil Sibal, Additional Solicitor General, A.S. Rao, C.V.S. Rao
and Ms. Sushma Suri for the Appellants.
R.K. Jain, Madhu Kotwal, Darshan Singh, Praveen Kumar,
A.S. Bhasme, and V.N. Patil for the Respondents.
The Judgment of the Court was delivered by
SAW ANT, J. These appeals are directed against the orders
dated June 27 and June 30, 1989 passed by the Bombay High Court in
Criminal Writ Petition No. 489 of 1989 and Criminal Application No.
1347 of 1989 respectively. An order of detention was passed on 13th
December, 1985 against the first respondent's husband, Subhash
Chander Gadia under Section 3 (1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act (hereinafter
referred to as the "COFEPOSA"). He could not, however, be served
with the said order as he was absconding. Hence a declaration was
made that he was a person who fell within the category mentioned in
Section 2 (b) of the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976 (hereinafter referred to as the
"SAFEMA"). Thereafter, a notice dated March 31, 1987 was issued to
him under sub-section (1) of Section 6 of the SAFEMA to show cause
as to why the properties mentioned in the schedule to the said notice
should not be forfeited to the Central Government for reasons
recorded in the accompaniment. A copy of the notice along with the
schedule of the properties and the copy of the reasons for forfeiture of
the property was also sent to the first respondent by letter of February
27, 1989.
2. The first respondent filed the aforesaid writ petition in the
High Court challenging the detention order of December 13, 1985 as
well as the show cause notice of March 31, 1987. The High Court by its
impugned decision held that the writ petition was maintainable for
challenging the detention order even though the detenu was not served
with the order and he had thus not surrendered to the authorities. The
High Court further directed that the detention order, the grounds of
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SECY. TO GOVT. OF !Nl)IA v. SMT. A.S. GADIA [SAWANT, J.]
591
detention, and the documents relied upon for passing the detention
order be furnished to the detenu and that they should also be produced
before the court. The High Court also directed the authorities to
supply the said documents to the counsel for the first respondent. The
said order was passed on June 27, 1989 and the authorities were
directed to furnish the documents to the first respondent by 5.30 p.m.
on June 29, 1989. Thereafter, the matter was directed to stand over till
July 3, 1989 to enable the first respondent to consider whether any
amendment to the writ petition was required. The Court also directed
that the matter be posted for further direction on June 30, 1989.
A
B
3. The Assistant Director of Enforcement filed an affidavit on
June 29, 1989 stating that under Article 22(5) of the Constitution, the
grounds of detention have to be given to the person when he is
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detained. Since even the constitutional mandate did not go further
than that, the detaining authority could not be compelled to furnish
the documents to anybody else other than the detenu after he is
detained. The authority also showed its willingness to produce the
documents for the perusal of the High Court without showing them
D
first to the first respondent.
4. The matter came up before the learned Judges on June 30
1989. The learned Judge found that no application was made for any
extension in time to carry out the orders of the Court nor was any
statement made that it was difficult to comply with the order. The E
learned Judges, therefore, held that the officers were guilty of contempt of court and directed the matter to be listed on July 3, 1989 to
take appropriate action for contempt of court. It is at that stage that
the Special Leave Petitions giving rise to the present appeals were filed
before this Court. This Court issued notice on the special leave petitions and granted stay of the High Court's direction, pending the F
notice. By another order of July 21, 1989, this Court admitted the
special leave petitions and directed the appeals to be listed in that last
week of August 1989. By their order of April 5, 1990, the two learned
Judges of this Court directed that since the appeals involved questions
of great public interest and importance, they should be referred to a
bench of three Judges. That is how the matter has come before us.
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5. The neat question of law that falls for consideration is
whether the detenu or anyone on his behalf is entitled to challenge the
detention order without the detenu submitting or surrendering to it.
As a corollary to this question, the incidental question that has to be
answered is whether the detenu or the petitioner on his behalf, as the
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SUPREME COURT REPORTS
[1990] Supp. 3 S.C.R.
case may be, is entitled to the detention order and the grounds on
A which the detention order is made before the detenu submits to the
order.
These questions may arise for consideration also when an order
forfeiting the property as a conasequence of the detention order as in
B the present case, is passed, and when the detention order is incidentally challenged to question the validity of the order of forfeiture of the
property.
c
6. The questions have assumed much importance because relying upon some judgments of this Court and of some of the High
Courts. writ petitions are filed as a matter of course to challenge the
detention orders and to obtain interim reliefs restraining the authorities from enforcing them without surrendering to them, thus frustrating the orders and defeating the very purpose of the detention law.
According to the learned Additional Solicitor General appearing for
the appellant-detaining authority, the number of such petitions has
D
grown in volume recently and when, as in the present case, the
authorities insist on the detenus first submitting to the order they are
faced with the contempt action. It has, therefore, become necessary to
review the law on the subject.
7. In order to answer the questions set out above, it is necessary
E
to examine the relevant provisions of the Constitution which permit
preventive detention of an individual. After the decision of this Court
in Rustom Cavasjee Cooper v. Union of India, [1970] 3 SCR 530 which
is otherwise known as the Bank Nationalisation case and in Maneka
Gandhi v. Union of India, [( 1978) 2 SCR 621], it is now well-settled (if
ever there was any doubt) that the fundamental rights under Chapter
F
III of the Constitution are to be read as a part of an integrated scheme.
They are not exclusive of each other but operate, and are, subject to
each other. The action complained of must satisfy the tests of all the
said rights so far as they are applicable to individual cases. It is not
enough, that it satisfies the requirements of any one of them. In
particular, it is well-settled that Article 22(5) is not the sole repository
G of the detenu's rights. His rights are also governed by the other funrlamental rights particularly those enshrined in Articles 14, 19 and 21.
Article 14 guarantees to all persons equality before the law and equal
protection of the laws. Articles 19, 20, 21and22 are grouped under the
broad heading "Right to Freedom" Article 19 is breached if any citizen is deprived whether, temporarily or permanently, of any of the
H rights which are mentioned therein. Although Article 19 confers free-
..
SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA [SAWANT, J.]
593
doms mentioned therein only on citizens, neither Article 14 nor Articles 20, 21 and 22 are confined to the protection of freedoms of citizens
only. They extend the relevant freedoms even to non-citizens. The
freedoms given to the citizen by Article 19 are, as if further sought to
be guaranteed by Articles 20, 21 and 22 in particular. Hence while
examining action resulting in the deprivation of the liberty of any
person, the limitations on such action imposed by the other fundamental rights where and to the extent applicable have to be borne in mind.
8. We are not concerned in the present case directly with Article
20 but with Articles 21and22. Article 21 has two parts. The first part
states that no person shall be deprived of his life or personal liberty.
The second part enacts an exception to the first part by stating that if a
person is to be deprived of his life and liberty, it will be done strictly
according to procedure established by law. By "law" or by "procedure" is of course, meant validly enacted law and procedure. There
are many facets of Article 21 but their discussion need not detain us
he.re. The permission given to the State by Article 21 to deprive a
person of his liberty according to procedure established by law is
expressly controlled by Article 22 in cases both of punitive and preventive detention. In case of detention other than preventive detention,
the provisions of its sub-clauses ( 1) and (2) apply wheres in case of
preventive detention, the provisions of its sub-clauses (4) to (7) come
into play. Sub-clause ( 1) states that when a person is arrested, he shall
be informed, as soon as may be, of the grounds of his arrest and that he
shall be given the right to consult and be defended by a legal
practitioner of his choice. The second safeguard provided for the
person is that he shall be produced before the nearest magistrate
within a period of 24 hours of his arrest. These two safeguards are not
available to a person who for the time being is an enemy alien or who is
arrested or detained under a preventive detention law. Needless to say
that even this arrest and detention has to be according to a valid
procedure established by a valid law.
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9. As regards the person who is detained under preventive
detention law, as stated above, it is the safeguards contained in subclauses (4) to (7) of Article 22 which are an exception to sub-clauses G
(1) and (2) thereof, which come into play. Sub-clause (4) states that
the preventive detention law shall not provide for the detention of a
person for a period longer than three months without his having to be
produced before the magistrate as is the requirement of sub-clause (2).
However, if he is to be detained beyond the period of three months, it
can be done so, only if the Advisory Board mentioned therein reports
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before the said period of three months, that there is, in its opinion,
,.
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sufficient cause for such detention. It further states that even if the
Advisory Board so reports, the person cannot be detained beyond the
maximum period prescribed in the law of detention. The sub-clause
also lays down that the law of detention must be a law passed by the
Parliament laying down both (a) the maximum period for which a -
B
person may be detained without obtaining the opinion of the Advisory
Board, (b) the maximum total period for which a person may be
detained preventively and ( c) the procedure to be followed by the
Advisory Board in an inquiry before it. If the law so enacted provides
for detention of a person for longer than three months without obtaining the opinion of the Advisory Board then the law must further
c
specify both the circumstances under which and the class or classes of
cases in which the person may be so detained preventively.
10. The provisions of Articles 21 and 22 read together, therefore, make it clear that a person can be deprived of his life or personal
liberty according to procedure established by law, and if the law made
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for the purpose is valid, the person who is deprived of his life or liberty
has to challenge his arrest or detention, as the case may be, according
to the provisions of the law under which he is arrested or detained.
This proposition is valid both for punitive and preventive detention.
The difference between them is made by the limitations placed by
sub-clauses (1) and (2) on the one hand and sub-clauses (4) to (7) on
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the other of Article 22, to which we have already referred above. What
is necessary to remember for our purpose is that the Constitution
permits both punitive and preventive detention provided it is according to procedure established by law made for the purpose and if both
the law and the procedure laid down by it, are valid.
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11. This is not to say that the jurisdiction of the High Court and
the Supreme Court under Aeticle 226 and 32 respectively has no role to
play once the detention-punitive or preventive-is shown to have been
made under the law so made for the purpose. This is to point out the
limitations which the High Court and the Supreme Court have to
observe while exercising their respective jurisdiction in such cases.
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These limitations are normal and well-known, and are self-imposed as
a matter of prudence, propriety, policy and practice and are observed
while dealing with cases under all laws. Though the Constitution does
not place any restriction on these powers, the judicial decisions have
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evolved them over a period of years taking into consideration the
nature of the right infringed or threatened to be infringed, the scope
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and object of the legislation or of the order or decision complained of,
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SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA [SAWANT, J.]
595
the need to balance the rights and interests of the individual as against
those of the society, the circumstances under which and the persons by
whom the jurisdiction is invoked, the nature of relief sought etc. To
illustrate these limitations: (i) in the exercise of their discretionery
jurisdiction the High Court and the Supreme Court do not, as Courts
of Appeal or Revision, correct mere errors of law or of fact; (ii) the
resort to the said jurisdiction is not permitted as an alternative remedy
for relief which may be obtained by suit or other mode prescribed by
statute. Where it is open to the aggrieved person to move another
Tribunal or even itself in another jurisdiction for obtaining redress in
the manner provided in the statute. The Court does not, by exercising
the writ-jurisdiction, permit the machinery created by the statute to be
by-passed; (iii) it does not generally enter upon the determination of
questions which demand an elaborate examination of evidence to
establish the right to enforce which, the writ is claimed; (iv) it does not
interfere on the merits with the determination of the issues made by
the authority invested with statutory power, particularly when they
relate to matters calling for expertise, unless there are exceptional
circumstances caJling for judicial intervention, such as, where the
determination is ma/a fide or is prompted by extraneous considerations or is made in contravention of the principles of natural justice or
any constitutional provision; (v) the Court may also intervene where
(a) the authority acting under the concerned Jaw does not have the
requisite authority or the order which is purported to have been passed
under the Jaw is not warranted or is in breach of the provisions of the
concerned law or the person against whom the action is taken is not the
person against whom the order is directed; or (b) where the authority
has exceeded its powers or jurisdiction or has failed or refused to
exercise jurisdiction vested in it; or (c) where the authority has not
applied its mind at all or has exercised its power dishonestly or for an
improper purpose; (vi) where the Court cannot grant a final relief, the
Court does not entertain petition only for giving interim relief. If the
Court is of opinion that there is no other convenient or efficacious
remedy open to the petitioner, it will proceed to investigate the case
on its merits and if the Court finds that there is an infringement of the
petitioner's legal rights, it wiJI grant final relief but will not dispose of
the petition only by granting interim relief. (vii) where the satisfaction
of the authority is subjective, the Court intervenes when the authority
has acted under the dictates of another body or when the conclusion is
arrived at by the application of a wrong test or misconstruction of a
statute or it is not based on material which is of a rationally probative
value and relevant to the subject matter in respect of which the authority is to satisfy its~lf. If again the satisfaction is arrived at by taking
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SUPREME COURT REPORTS
[!990] Supp. 3 S.C.R.
A into consideration material which the authority properly could not, or
by omitting to consider matters which it ought to have, the Court
interferes with the resultant order. (viii) In proper cases the Court also
intervenes when some legal or fundamental right of the individual is
seriously threatened, though not actually invaded.
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12. These limitations are not only equally observed by the High
Court and the Supreme Court while exercising their writ jurisdiction in
preventive detention matters, but in view of the object for which the
detention law is enacted and is permitted by the Constitution to be
enacted, the Courts are more circumspect in observing them while
exercising their said extraordinary equitable and discretionery power
C in these cases. While explaining the nature of the detention law and of
the orders passed under it and the scope of the powers of the Court in
these matters, this Court has often emphasised the distinction betwen
the existence of its wide powers and the propriety and desirability of
using them.
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In the Special Reference No. 1of1964 reported in ( 1965) I SCR
492) which arose out of the dispute as to the constitutional relationship
between the High Court and the Uttar Pradesh State Legislature, this
Court pointed out that when a citizen moves the Court and complains
that his fundamental right under Article 21 is contravened, it would
plainly be the duty of the Court to examine the merits of the said
E contention and that inevitably raises the question as to whether the
personal liberty of the citizen has been taken away according to the
procedure established by law. The Court held that the power of the
High Court under Article 226 and the authority of this Court under
Article 32 are not subject to any exceptions. Therefore, it cannot be
contended that a citizen cannot move the High Court or this Court to
F invoke their jurisdiction even in cases where his fundamental rights
have been violated. The judicial power conferred on the High Court
and this Court is meant for the protection of the citizens' fundamental
rights.
In Dwarkanath, Hindu Undivided Family v. Income-Tax Officer,
G Special Circle, Kanpur & Anr., [ 1965] 3 SCR 536 while dealing with
the nature and scope of power under Article 226, this Court observed
that though the High Court under that Article has a wide power to
reach injustice wherever it is found, it does not mean that the High
Court can funcation arbitrarily under it. Some limitations are implicit
in the Article and others may be evolved to direct the Article through
H defined channels.
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SECY. TO GOVT. OF INDIA v. SMT. A.S. GADIA [SAWANT, J.J
597
State of Bihar v. Rambalak Singh "Balak" & Ors., AIR 1966 SC
1441 was a case dealing with the question whether the High Court had
under Art. 226 jurisdiction to release a detenu on bail pending the
final disposal of the petition. The detenu in that case was detained
under Rule 30 of the Defence of India Rules. The Court observed that
if on proof of certain conditions or grounds it is open to the High Court
to set aside the order of detention and direct the release of the detenu,
it would not be possible to hold that in a proper case, the High Court
had no jurisdiction to make an interim order giving the detenu the
relief which the High Court would be entitled to give him at the end of
the proceeding. The Court referred to its earlier decision in Special
Reference No. 1 of 1964 (supra) and pointed out that the general
principle on which the observations of this Court were based in that
case would apply as much to the habeas corpus proceeding commenced on behalf of the detenu detained under Rule 30 of the Defence
of India Rules as to any other habeas corpus proceeding. According to
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the Court, the interim relief which can be granted in habeas corpus
proceeding must no doubt be in aid of and auxiliary to the main relief.
The Court added that it ic true that in dealing with the question as to
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whether interim bail should be granted to the detenu, the Court would
naturally take into account the special objects which are desired to be
achieved by orders of detention passed under Rule 30 but, stated the
Court, "We are dealing with the bare question of jurisdiction and are
not concerned with the propriety or the reasonableness of any given
order. Considering the question as a bare question of jurisdiction we
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are reluctant to hold that the jurisdiction of the High Court to pass
interim auxiliary orders under Art.