# SUBHASH POPATLAL DAVE v. UNION OF INDIA AND ANR

- **Citation:** [2012] 7 S.C.R. 61
- **Court:** Supreme Court of India
- **Decided:** 2012-07-10
- **Bench:** Altamas Kabir, Gyan Sudha Misra, J. Chelameswar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/subhash-popatlal-dave-v-union-of-india-and-anr-28361
- **Pages:** 30

## Headnote

A
B
Preventive Detention - Detention order - Right of a detenu
to be provided with the grounds of detention prior to his arrest
- Enactment of RT/ Act - Effect - Whether under the RT/ Act, C
a detenu is entitled, in assertion of his human rights, to receive
the grounds under which he is to be detained, even before his
detention, at the pre-execution stage - Held: Notwithstanding
the provisions of the RT/ Act, the State is not under any
obligation to provide the grounds of detention to a detenu prior D
to his arrest and detention - The provisions of the Constitution
prevail over any enactment of the legislature, which itself is a
creature of the Constitution - Since clause (5) of Article 22 of
the Constitution provides that the grounds for detention are
to be served on a detenu after his detention, the provisions E
of s. 3 of the RT/ Act, cannot be applied to cases relating to
preventive detention at the pre-execution stage - S.3 of the
RT/ Act has to give way to the provisions of Clause (5) of
Article 22 of the Constitution - Constitution of India, 1950 -
Article 22(5) - Right to Information Act, 2005 - s. 3.
F
Preventive Detention - Detention order - Challenge to, at
the pre-execution stage - Scope - Whether the five instances/
exceptions indicated in paragraph 30 of the Atka Subhash
Gadia's case, under which a detention order could be G
challenged at the pre-execution stage were exhaustive or only
illustrative - Held: The five examples indicated in Alka
Subhash Gadia's case were intended to be exemplar and not
exhaustive- To accept that it was the intention of the Hon'ble
61
H
62
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A Judges in Atka Subhash Gadia's case to confine the
challenge to a detention at the pre-execution stage, only on
the five exceptions mentioned therein, would amount to
imposing restrictions on the powers of judicial review vested
in the High Courts and the Supreme Court under Articles 226
B and 32 of the Constitution - Exercise of powers vested in the
superior Courts in judicially reviewing executive decisions and
orders cannot be subjected to any restrictions by an order of
the Court of law - In various pronouncements of the law by
Supreme Court, detention orders have been struck down,
c even without the apprehension of the detenu, on the ground
of absence of any live link between the incident for which the
detenu was being sought to be detained and the detention
order and also on grounds of staleness - These issues were
not before the Hon'ble Judges deciding Atka Subhash Gadia's
D case - Law is dynamic - The most precious right of a citizen
is his right to freedom and if the same is to be interfered with,
albeit in the public interest, such powers have to be exercised
with extra caution and not as an alternative to the ordinary
laws of the land - Issue relating to the right of a detenu to
E challenge his detention at the pre-execution stage on grounds
other than those set out in paragraph 30 of the judgment in
Atka Subhash Gadia's case, requires further examination -
Constitution of India, 1950 - Articles 32 and 226.
F
The instant Special Leave Petitions and Writ Petitions
were all directed against orders of preventive detention
at the pre-execution stage.
During the course of the hearing, it was submitted on
behalf of some of the Petitioners that the decision
G
rendered in Alka Subhash Gadia case that a preventive
detention order could be challenged at the pre-execution
stage on the five grounds enumerated in the judgment,
was no longer good law on account of the subsequent
enactment of the Right to Information Act, 2005 (RTI Act).
H
A connected question which was raised was whether the
SUBHASH POPATLAL DAVE v. UNION OF INDIA
63
AND ANR.
aforesaid decision in Alka Subhash Gadia's case was per A
incuriam, since it did not have the occasion to notice
subsequent decisions on the same question. Another
question which was raised was whether the five
instances indicated in Alka Subhash Gadia's case, under
which a

## Text

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[2012] 7 S.C.R. 61
SUBHASH POPATLAL DAVE
v.
UNION OF INDIA AND ANR.
(Writ Petition (CRL.) No. 1.37 of 2011)
JULY 10, 2012
[ALTAMAS KABIR, GYAN SUDHA MISRA AND
J. CHELAMESWAR, JJ.]
A
B
Preventive Detention - Detention order - Right of a detenu
to be provided with the grounds of detention prior to his arrest
- Enactment of RT/ Act - Effect - Whether under the RT/ Act, C
a detenu is entitled, in assertion of his human rights, to receive
the grounds under which he is to be detained, even before his
detention, at the pre-execution stage - Held: Notwithstanding
the provisions of the RT/ Act, the State is not under any
obligation to provide the grounds of detention to a detenu prior D
to his arrest and detention - The provisions of the Constitution
prevail over any enactment of the legislature, which itself is a
creature of the Constitution - Since clause (5) of Article 22 of
the Constitution provides that the grounds for detention are
to be served on a detenu after his detention, the provisions E
of s. 3 of the RT/ Act, cannot be applied to cases relating to
preventive detention at the pre-execution stage - S.3 of the
RT/ Act has to give way to the provisions of Clause (5) of
Article 22 of the Constitution - Constitution of India, 1950 -
Article 22(5) - Right to Information Act, 2005 - s. 3.
F
Preventive Detention - Detention order - Challenge to, at
the pre-execution stage - Scope - Whether the five instances/
exceptions indicated in paragraph 30 of the Atka Subhash
Gadia's case, under which a detention order could be G
challenged at the pre-execution stage were exhaustive or only
illustrative - Held: The five examples indicated in Alka
Subhash Gadia's case were intended to be exemplar and not
exhaustive- To accept that it was the intention of the Hon'ble
61
H
62
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A Judges in Atka Subhash Gadia's case to confine the
challenge to a detention at the pre-execution stage, only on
the five exceptions mentioned therein, would amount to
imposing restrictions on the powers of judicial review vested
in the High Courts and the Supreme Court under Articles 226
B and 32 of the Constitution - Exercise of powers vested in the
superior Courts in judicially reviewing executive decisions and
orders cannot be subjected to any restrictions by an order of
the Court of law - In various pronouncements of the law by
Supreme Court, detention orders have been struck down,
c even without the apprehension of the detenu, on the ground
of absence of any live link between the incident for which the
detenu was being sought to be detained and the detention
order and also on grounds of staleness - These issues were
not before the Hon'ble Judges deciding Atka Subhash Gadia's
D case - Law is dynamic - The most precious right of a citizen
is his right to freedom and if the same is to be interfered with,
albeit in the public interest, such powers have to be exercised
with extra caution and not as an alternative to the ordinary
laws of the land - Issue relating to the right of a detenu to
E challenge his detention at the pre-execution stage on grounds
other than those set out in paragraph 30 of the judgment in
Atka Subhash Gadia's case, requires further examination -
Constitution of India, 1950 - Articles 32 and 226.
F
The instant Special Leave Petitions and Writ Petitions
were all directed against orders of preventive detention
at the pre-execution stage.
During the course of the hearing, it was submitted on
behalf of some of the Petitioners that the decision
G
rendered in Alka Subhash Gadia case that a preventive
detention order could be challenged at the pre-execution
stage on the five grounds enumerated in the judgment,
was no longer good law on account of the subsequent
enactment of the Right to Information Act, 2005 (RTI Act).
H
A connected question which was raised was whether the
SUBHASH POPATLAL DAVE v. UNION OF INDIA
63
AND ANR.
aforesaid decision in Alka Subhash Gadia's case was per A
incuriam, since it did not have the occasion to notice
subsequent decisions on the same question. Another
question which was raised was whether the five
instances indicated in Alka Subhash Gadia's case, under
which a detention order could be challenged at the preB
execution stage, was exhaustive or whether they were
only illustrative.
Directing the Special Leave Petitions and the writ
petitions to be listed again for final hearing and disposal, C
the Court
HELD:
Whether the R.T.I. Act applies in cases of preventive
detention.
D
1.1. Article 22 of the Constitution provides for
protection against arrest and detention in certain cases.
Clauses (1) and (2) of Article 22 set out the manner in
which a person arrested is to be dealt with and clause (1) E
makes it clear that no person who is arrested is to be
detained in custody without being informed, as soon as
may be, of the grounds for such arrest. Clause (2)
provides that such a person who is arrested and detained
in custody has to be produced before a Magistrate within F
a period of 24 hours of such arrest However, an exception
is made by clause (3), which provides that nothing in
clauses (1) and (2) shall apply, amongst others, to any
person who is arrested or detained under any law
providing for preventive detention. Clause (4) thereafter G
sets out that no law providing for preventive detention
shall authorize such detention for more than three
months without following the procedure subsequently set
out. Clause (5) of Article 22 is very relevant. From the
opening words of the pro~ision, it is clear that the H
64
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A grounds on which the person is detained is to be
communicated to him when the person has actually been
detained. If one were to read clauses (1) to (6) of Article
22 as a whole, it is more than obvious that the scheme
envisaged therein provides for the protection of a person
B arrested in connection with an offence by providing for
his production before the Magistrate within 24 hours of
his arrest and also to avail the services of a lawyer, but
an exception has been carved out in relation to detention
effected under preventive detention laws. A detenu is not
C required to be treated in the same manner as a person
arrested in connection with the commission of an alleged
offence. On the other hand, preventive detention laws
provide for the detention of a person with the intention
of preventing him from committing similar offences in the
D future, at least for a period of one year. Section 3 of the
R.T.I. Act, 2005, provides that subject to the provisions
of the Act, all citizens would have the right to information.
Section 8, however, makes an exemption from disclosure
of information. While setting out the instances in which
E there would be no obligation to give any citizen
information in the situations enumerated in Sub-Section
(1), Sub-Section (2) provides that notwithstanding
anything in the Official Secrets Act, 1923, nor any of the
exemptions permissible in accordance with Sub-Section
F
(1 ), a public authority may allow access to information, if
public interest in disclosure outweighs the harm to the
protected interests. Even under Sub-Section (1) of
Section 8 of the RTI Act, the legislature made an
exception to the disclosure of information which could
G be contrary to the interests of the nation, subject to the
provision that such information may also be allowed to
be accessed in the public interest, which overweighed
the personal interests of the citizen. Not much discourse
is required with regard to the primacy of the provisions
H of the Constitution, vis-a-vis the enactments of the
SUBHASH POPATLAL DAVE v. UNION OF INDIA
65
AND ANR.
legislature. The provisions of the Constitution will prevail
A
over any enactment of the legislature, which itself is a
creature of the Constitution. Since clause (5) of Article 22
provides that the grounds for detention are to be served
on a detenu after his detention, the provisions of Section
3 of the R.T.I. Act, 2005, cannot be applied to cases
B
relating to preventive detention at the pre-execution
stage. In other words, Section 3 of the R.T.I. Act has to
give way to the provisions of Clause (5) of Article 22 of
the Constitution. Even the provisions relating to
production of an arrested or detained person, contained
C
in clauses (1) and (2) of Article 22 of the Constitution,
have in their application been excluded in respect of a
person detained under any preventive detention law.
Notwithstanding the provisions of the R.T.I. Act, 2005, the
State is not under any obligation to provide the grounds
D
of detention to a detenu prior to his arrest and detention,
notwithstanding the fact that in the cases of Choith
Nanikram Harchandai and Suresh Hotwani & Anr., the
grounds of detention had been provided to the detenu
under the R.T.I. Act, 2005, at the pre-execution stage. The
E
procedure followed under the R.T.I. Act, in respect of the
said writ petitions cannot and should not be treated as a
precedent in regard to the contention that under the RT.I.
Act, 2005, a detenu was entitled, in assertion of his human
rights, to receive the grounds under which he was to be
F
detained, even before his detention, at the pre-execution
stage. [Paras 20, 21, 22 and 23) [82-B-D, G-H; 83-A-E; 84C-H; 85-A-C]
Whether the five exceptions mentioned in A/ka G
Subhash Gadia's case regarding the right to challenge an
order of detention at the pre-execution stage, were
exhaustive or not.
1.2. The decision in Atka Subhash Gadia's case,
appears to suggest several things at the same time. The
H
66
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A Three-Judge Bench, while considering the challenge to
the detention order passed against the detenu, at the preexecution stage, and upholding the contention that such
challenge was maintainable, also sought to limit the
scope of the circumstances in which such challenge
B could be made. However, before arriving at their final
conclusion on the said point, the learned Judges also
considered the provisions of Articles 19 to 22 relating to
fundamental freedoms conferred on citizens and the
proposition that the fundamental rights under Chapter Ill
C of the Constitution have to be read as a part of an
integrated scheme. Their Lordships emphasized that they
were not mutually exclusive, but operated, and were
subject to each other. Their Lordships held that it was not
enough that the detention order must satisfy the tests of
D all the said rights so far as they were applicable to
individual cases. Their Lordships also emphasized in
particular that it was well-settled that Article 22(5) is not
the sole repository of the detenu's rights. His rights are
also governed by the other fundamental rights,
E particularly those enshrined in Articles 14, 19 and 21 of
the Constitution and the nature of constitutional rights
thereunder. Their Lordships were of the view that read
together the Articles indicate that the Constitution permits
· both punitive and preventive detention, provided it is
F according to procedure established by law made for the
purpose and if both the law and the procedure laid down
by it are valid. It is in the aforesaid background that Their
Lordships while examining the various decisions
rendered on the subject, summed up the discussion in
G paragraph 30 of the judgment, wherein Their Lordships
again reiterated that neither the Constitution, including
the provisions of Article 22 thereof, nor the Act in
question, places any restriction on the powers of the High
Court and this Court to review judicially the order of
H detention. Their Lordships observed that the powers
SUBHASH POPATLAL DAVE v. UNION OF INDIA
67
AND ANR.
under Article 226 and 32 are wide, and are untrammelled
A
by any external restrictions, and can reach any executive
action resulting in civil or criminal consequences.
Howe· ·er, the said observations were, thereafter,
somewhat whittled down by the subsequent observation
that the Courts have over the years evolved certain selfB
restraints in exercising these powers. Such self-imposed
restraints were not confined to the review of the orders
passed under detention law only, but they extended to
orders passed and decisions made under all laws. It was
also observed that in pursuance of such self-evolved C
judicial policy and in conformity with the self-imposed
internal restrictions that the Courts insist that the
aggrieved person should first allow the due operation and
implementation of the concerned law and exhaust the
remedies provided by it before approaching the High
D
Court and this Court to invoke their discretionary,
extraordinary and equitable jurisdiction under Articles
226 and 32 respectively and that such jurisdiction by its
very nature has to be used sparingly and in
circumstances where no other efficacious remedy is
E
available. However, having held as above, Their
Lordships also observed that all the self-imposed
restrictions in respect of detention orders would have to
be respected as it would otherwise frustrate the very
purpose for which such detention orders are passed for
F
a limited purpose. Consequently, inspite of upholding the
jurisdiction of the Court to interfere with such orders even
at the pre-execution stage, Their Lordships went on to
observe that the grounds on which the courts have
interfered with the detention orders "at the pre-execution
G
stage are necessarily very limited in scope and number,
viz., where the courts are prima facie satisfied (i) that the
impugned order is not passed unde·r 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
H
68
SUPREME COURT REPORTS
[2012) 7 S.C.R.
A 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
B prior to their execution on any other ground does not
amount to the abandonment of the said power or to their
denial to the proposed detenu, but prevents their abuse
and the perversion of the law in question." Nowhere was
it indicated that challenge to the detention order at the
C pre-execution stage, can be made mainly on the
aforesaid exceptions referred to hereinabove. By
prefacing the five exceptions in which the Courts could
interfere with an order of detention at the pre-execution
stage, with the expression "viz", Their Lordships possibly
D never intended that the said five examples were to be
exclusive. In common usage or parlance the expression
"viz" means "in other words". There is no aura of finality
attached to the said expression. The use of the
expression suggests that the five examples were
E intended to be exemplar and not exclusive. On the other
hand, the Hon'ble Judges clearly indicated that the
refusal to interfere on any other ground did not amount
to the abandonment of said power. This Court has not
been able to read into the judgment in Alka Subhash
F Gadia's case any intention on the part of the Hon'ble
Judges, who rendered the decision in that case, that
challenge at the pre-execution stage would have to be
confined to the five exceptions only and not in any other
case. To accept that it was the intention of the Hon'ble
G Judges in Alka Subhash Gadia's case to confine the
challenge to a detention at the pre-execution stage, only
on the five exceptions mentioned therein, would amount
to imposing restrictions on the powers of judicial review
vested in the High Courts and the Supreme Court under
H Articles 226 and 32 of the Constitution. The exercise of
SUBHASH POPATLAL DAVE v. UNION OF INDIA
69
AND ANR.
powers vested in the superior Courts in judicially A
reviewing executive decisions and orders cannot be
subjected to any restrictions by an order of the Court of
law. Such powers are untrammelled and vested in the
superior Courts to protect all citizens and even noncitizens, under the Constitution, and may require further
B
examination. [Paras 24, 25, 26 and 28) [85-D-H; 86-A-B, EH; 87-A-H; 88-A-C, H; 89-A-D]
1.3. In the circumstances, while rejecting the
contention regarding the right of a detenu to be provided c
with the grounds of detention prior to his arrest, this
Court is of the view that the right of a detenu to challenge
his detention at the pre-execution stage on grounds other
than those set out in paragraph 30 of the judgment in Alka
Subhash Gadia's case, requires further examination.
D
There are various pronouncements of the law by this
Court, wherein detention orders have been struck down,
even without the apprehension of the detenu, on the
ground of absence of any live link between the incident
for which the detenu was being sought to be detained
E
and the detention order and also on grounds of
staleness. These are issues which were not before the
Hon'ble Judges deciding Alka Subhash Gadia's case.
Law is never static but dynamic, and to hold otherwise,
would prevent the growth of law, especially in matters
F
involving the right of freedom guaranteed to a citizen
under Article 19 of the Constitution, which is sought to
be taken away by orders of preventive detention, where
a citizen may be held and detained not to punish him for
any offence, but to prevent him from committing such
G
offence. The most precious right of a citizen is his right
to freedom and if the same is .to be interfered with, albeit
in the public interest, such powers have to be exercised
with extra caution and not as an alternative to the
ordinary laws of the land. [Para 29) [89-E-H; 90-A-B]
H
70
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A
Addi. Secretary, Govt. of India vs. Alka Subhash Gadia
(1992) Supp. (1) sec 496: 1990 (3) Suppl. SCR 583 -
explained.
Deepak Bajaj vs. State of Maharashtra (2008) 16 SCC
8
14: 2008 (15) SCR 1062; Ramesh Thappar vs. State of
Madras (1950) SCR 594; D.A. V. College vs. State of Punjab
(1972) 2 SCC 269; Haradhan Saha vs. State of West Bengal
(1975) 3 SCC 198: 1975 (1) SCR 778; Olga Tellis & Ors. vs.
Bombay Municipal Corporation (1985) 3 SCC 545: 1985 (2)
c Suppl. SCR 51; K.K. Kochunni vs. State of Madras (1959)
Supp. (2) SCR 316; Francis Coralie Mullin vs. W.C. Khambra
(1980) 2 SCC 275: 1980 (2) SCR 1095; Rajinder Arora vs.
Union of India (2006) 4 SCC 796: 2006 (3) SCR 9; Yumman
Ongbi Lembi Leima vs. State of Manipur (2012) 2 SCC 176;
D Rekha vs. State of Tamil Nadu (2011) 5 SCC 244: 2011 (4)
SCR 740; Sayed Taher Bawamiya vs. Joint Secretary,
Government of India (2000) 8 SCC 630; Union of India vs.
Atam Prakash & Anr. (2009) 1 SCC 585: 2008 (16) SCR 607;
Alpesh Navinchandra Shah vs. State of Maharashtra (2007)
E 2 SCC 777: 2007 (3) SCR 223; State of Maharashtra vs.
Bhaurao Punjabrao Gawande (2008) 3 SCC 613: 2008 (3)
SCR 967; Naresh Kumar Goyal vs. Union of India (2005) 8
SCC 276: 2005 (4) Suppl. SCR 17 and Union of India vs.
Parasmal Rampuria (1998) 8 SCC 402 - referred to.
F
Case Law Reference:
1990 (3) Suppl. SCR 583 explained
Para 1
2008 (15) SCR 1062
referred to
Para 3
G
(1950) SCR 594
referred to
Para 5
(1972) 2 sec 269
referred to
Para 5
1975 (1) SCR 778
referred to
Para 6
H
1985 (2) Suppl. SCR 51
referred to
Para 6
SUBHASH POPATLAL DAVE v. UNION OF INDIA
71
AND ANR.
(1959) Supp. (2) SCR 316 referred to
Para 6
1980 (2) SCR 1095
referred to
Para 6
2006 (3) SCR 9
referred to
Para 7
(2012) 2 sec 176
referred to
Para 7
2011 (4) SCR 740
referred to
Para 8
c2000) s sec 630
referred to
Para 10
2008 (16) SCR 607
referred to
Para 10
2007 (3) SCR 223
referred to
Para 12
2008 (3) SCR 967
referred to
Para 12
2011 (4) SCR 740
referred to
Para 12
2005 (4) Suppl. SCR 17
referred to
Para 14
(1998) 8 sec 402
referred to
Para 15
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
Nos. 137 of 2011 etc.
Under Article 32 of the Constitution of India.
WITH
W.P. (Crl.) Nos. "138, 35, 142, 220, 249 of2011, 11, 14 of2012
A
B
c
D
E
& SLP (Crl.) Nos. 1909, 1938 of 2011, 2442, 2091-2092 of
F
2012.
P.P. Malhotra, ASG, Mukul Rohtagi, V.K. Bali, B.H.
Marlapalle, Sujay N. Kantawala, Saurabh Kirpal, Sanjay
Agarwal, Karan Bharioke, Rakesh Dahiya, G.K. Sarkar,
Malabika Sarkar, D. Mahesh Babu, Nikhil Jain, Ravindra
G
Keshavrao Adsure, Vikram Chaudhari, Gagandeep Sharma,
Preeti Singh, Rakesh Dahiya, Ranjana Narayan, P.K. Dey,
Chetan Chawla, Asha G. Nair, Arvind Kumar Sharma, B.
Krishna Prasad for the appearing parties.
H
72
SUPREME COURT REPORTS
[2012] 7 S.C.R.
A
The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. These Special Leave Petitions
and Writ Petitions are all directed against orders of preventive
detention at the pre-execution stage. During the course of
8 hearing, it was submitted on behalf of some of the Petitioners
that the decision rendered in Addi. Secretary, Govt. of India
vs. Alka Subhash Gadia [(1992) Supp. (1) SCC 496] that a
preventive detention order could be challenged at the preexecution stage on the five grounds enumerated in the
judgment, was no longer good law on account of the subsequent
C enactment of the Right to Information Act, 2005, hereinafter
referred to as the "R.T.I. Act", which came into force on 15th
June, 2005. A connected question which was raised was
whether the aforesaid decision in Alka Subhash Gadia's case
(supra) was per incuriam, si~ce it did not have the occasion to
D notice subsequent decisions on the same question. Another
question which was raised was whether the five instances
indicated in Alka Subhash Gadia's case (supra), under which
a detention order could be challenged at the pre-execution
stage, was exhaustive or whether they were only illustrative.
E
F
2. Since a decision on the points raised could effectively
decide the matters without going into factual details, it was
decided to decide the said questions as pre]iminary issues,
before going into the matters on merit.
3. Appearing on behalf of some of the Petitioners, Mr.
Mukul Rohatgi, learned Senior Advocate, urged that the five
exceptions laid down in Alka Subhash Gadia's case (supra)
were not exhaustive, but only illustrative, as was held by this
G Court in Deepak Bajaj vs. State of Maharashtra [(2008) 16
sec 14]. Mr. Rohatgi submitted that it was well settled that the
power of judicial review vested in the High Courts under Article
226 and in this Court under Article 32 of the Constitution, is part
of the basic structure of the Constitution and it was
H inconceivable that such power of judicial review could be
SUBHASH POPATLAL DAVE v. UNION OF INDIA
73
AND ANR. [ALTAMAS KABIR, J.]
restricted by amending the Constitution or by a judicial
A
pronouncement.
4. Mr. Rohatgi contended that since Article 32 was
included in Part 111 of the Constitution and was in itself a
fundamental right, the exercise of jurisdiction thereunder by this
8
Court could not be affected and/or resfricted by the decision
rendered in Atka Subhash Gadia's case (supra). Learned
counsel urged that it was also inconceivable that by a judicial
pronouncement, the jurisdiction of this Court to interfere with
detention orders at a pre-execution stage only could be
C
restricted to the five exceptions mentioned in Atka Subhash
Gadia's case (supra) only, for all times to come.
5. Tracing the history of the powers exercised by this Court
under Article 32 of the Constitution, Mr. Rohatgi firstly referred
to the decision rendered by this Court in the case of Romesh
D
Thappar vs State of Madras [(1950) SCR 594], wherein it was
observed that Article 32 provides a guaranteed remedy for the
enforcement of the rights under Part Ill of the Constitution and
this remedial right has itself been made a fundamental right by
being included in Part Ill. Mr. Rohatgi then referred to the
E
decision of this Court in D.A. V. College vs. State of Punjab
[(1972) 2 SCC 269], wherein in paragraph 44, this Court
observed that it was immaterial as to whether any fundamental
right has been threatened or violated. So long as a prima facie
case of such threat and violation was made out, a petition under
F
Article 32 has to be entertained.
6. Various other judgments were also referred to by Mr.
Rohatgi, of which it will be worthwhile to refer to the decision
of this Court in Haradhan Saha vs. State of West Bengal
[(1975) 3 SCC 198], Olga Tellis & Ors. vs. Bombay Municipal
G
Corporation [(1985) 3 SCC 545] and K.K. Kochunni vs. State
of Madras [(1959) Supp. (2) SCR 316]. All these judgments
have held that judicial review of administrative action, even when
fundamental rights are threatened, is permitted on grounds of
relevance, reasonableness, necessity, delay, casualness and
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A for infringement of Articles 14, 19 and 21. In fact, it was in K.K.
Kochunni's case (supra) that it was observed by the
Constitution Bench that the right to enforce a fundamental right
conferred by the Constitution was itself a fundamental right
guaranteed by Article 32 of the Constitution and this Court could
B not refuse to entertain a petition under that Article simply
because the Petitioner had/might have any other alternative
legal remedy. The said position was further reiterated by
another Constitution Bench in Haradhan Saha's case (supra),
while dealing with a case involving preventive detention. It was
c observed that the essential concept of preventive detention is
that the detention of a person is not to punish him for something
he has done, but to prevent him from doing it again. It was also
observed that there could be no parallel between prosecution
in a Court of law and a detention order under the Act. While
0 one is punitive, the other is preventive. Also referring to the
decision of this Court in Francis Coralie Mullin vs. W. C.
Khambra ((1980) 2 SCC 275], Mr. Rohatgi referred to the
observations made in paragraph 5 of the judgment to the effect
that the role of the Court in cases of preventive detention has
E to be one of eternal vigilance as no freedom is higher than
personal freedom and no duty higher than to maintain it
unimpaired. Furthermore, the Court's writ is the ultimate
insurance against illegal detention and a detenu was, therefore,
entitled to question the detention order even at the preexecution stage, as was held in Alka Subhash Gadia's case
F (supra}, on grounds other than those set out therein.
6. In support of his submission that circumstances had
substantially changed on account of the advent of information
technology, Mr. Rohatgi submitted that this Court had occasion
G to consider the challenge against orders of preventive detention
on grounds outside those indicated in Alka Subhash Gadia's
case (supra), wherein this Court had intervened and quashed
the orders of detention on grounds, other than those indicated
in Alka Subhash Gadia's case (supra).
H
7. In this connection, Mr. Rohatgi firstly referred to the
SUBHASH POPATLAL DAVE v. UNION OF WDIA
75
AND ANR. [ALTAMAS KABIR; J.]
decision of this Court in Rajinder Arora vs. Union of India
A
[(2006) 4 SCC 796], wherein this Court had held that the delay
in passing of a detention order, without any explanation for such
delay, was sufficient ground to set aside the detention order
made under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974. Of course, it must
B
be said that while quashing the detention order, Their Lordships
related the facts of the said case with grounds 3 and 4 of the
decision in Atka Subhash Gadia's case (supra). Reference
was thereafter made by Mr. Rohatgi to a Three-Judge Bench
decision of this Court, in which two of us (Altamas Kabir and c
J. Chelameswar, JJ) were parties, in the case of Yumman
Ongbi Lembi Leima vs. State of Manipur [(2012) 2 SCC 176],
in which the detention order was quashed, inter alia, on the
ground that there was no proximate and live link between the
activities of the detenu and the detention order. In the said
D
matter, facts relating to the arrest of the detenu and subsequent
release on bail more than 12 years before the offence in
respect of which detention orders had been passed, were held
to be irrelevant and/or improper for justification of an order of
detention. Mr. Rohatgi pointed out that it was also held therein
E
that mere apprehension that the detenu was likely to be
released on bail, whereafter he would indulge in further
prejudicial activities, was not sufficient to justify the detention
order in the absence of any other ground.
8. The next decision referred to by Mr. Rohatgi was
F
delivered by a Bench of three Judges of this Court in Rekha
vs. State of Tamil Nadu [(2011) 5 SCC 244], wherein while
disagreeing with some of the observations made in Haradhan
Saha's case (supra), the Hon'ble Judges went on to hold that
though in Haradhan Saha's case it had been held that the
G
authorities could take recourse to both criminal proceedings
and also preventive detention, it did not mean that such would
be the law in all cases, even though in the view of the Court
the criminal proceedings were sufficient to deal with the
offences.
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A
9. Having completed his submissions with regard to the
exhaustive and/or illustrative nature of the five exceptions set
out in Alka Subhash Gadia's case (supra), Mr. Rohatgi then
turned his focus on the provisions of the R.T.I. Act under which,
according to learned counsel, a detenu was entitled to receive
B a copy of the grounds of detention even though he had not been
actually apprehended and detained pursuant to such detention
order. Mr. Rohatgi submitted that in the cases of Choith
Nanikram Harchandai and Suresh Hotwani, the grounds of
detention had been provided to the detenu under the provisions
c of Section 3 of the aforesaid Act. Learned counsel submitted
that the only prohibition to the grant of information has been set
out in Section 8(h) and Section 24 of the said Act. Section 8(h)
of the RT.I. Act prohibits the disclosure of information which
could impede the process of investigation or the apprehension
0 and prosecution of offenders. Mr. Rohatgi submitted that it is
obvious that the said provisions were confined to persons who
are offenders and not detenus under a preventive de,tention law,
who could not under the detention order be said to be an
offender. Mr. Rohatgi urged that the only other restriction was
E under Section 24, wherein certain security and intelligence
agencies of the Government have been exempted from the
provisions of the Act. Learned counsel urged that under the first
proviso to Section 24, information relating to human rights
cannot be denied to the person seeking information since
human rights had been defined in Section 2(e) of the Protection
F of Human Rights Act as being rights relating to life, liberty,
equality and dignity, guaranteed by the Constitution. Mr. Rohatgi
contended that the illegal detention would also amount to
violation of human rights.
G
10. Mr. Rohatgi submitted that the Right to Information Act
was not in existence, when decisions were rendered by this
Court in Alka Subhash Gadia's case (supra) as also in the
case of Sayed Taher Bawamiya vs. Joint Secretary,
Government of India [(2000) 8 sec 630] and in the case of
H Union of India vs. Atam Prakash & Anr. [2009) 1 SCC 585],
SUBHASH POPATLAL DAVE v. UNION OF INDIA
77
AND ANR. [ALTAMAS KABIR, J.]
in which it was held that the grounds of challenge to a detention A
order at the pre-execution stage could only be confined to the
five exceptions set out in Atka Subhash Gadia's case (supra).
11. Mr. Rohatgi submitted that having regard to the various
circumstances which this Court had no occasion to consider 8
in Atka Subhash Gadia's case (supra), it cannot be accepted
that the challenge to preventive detention order at the preexecution stage could not be made on any other ground other
than the five exceptions mentioned in Atka Subhash Gadia's
case (supra). Mr. Rohatgi urged that besides the above, the
right of a detenu to information relating to the grounds of C
detention under Section 3 of the Right to Information Act, 2005,
was also a circumstance which could not be taken into
consideration by the Hon'ble Judges while deciding Atka
Subhash Gadia's case (supra). Accordingly, in the changed
circumstances, it cannot be held that apart from the five D
exceptions mentioned in Atka Subhash Gadia's case (supra),
a detenu could not be denied the grounds of detention on the
basis of which he was to be detained at the pre-execution
stage.
E
12. In addition to the submissions made by Mr. Rohatgi,
submissions were also advanced by Mr. Ravindra Keshavrao
Adsure, Advocate, appearing for some of the Petitioners in
these matters. In fact, Mr. Adsure is appearing in the lead
matter, namely, Writ Petition (Crl.) No.137 of 2011, filed by
F
Subhash Popatlal Dave, in which the detention order made
against one Haresh Kalyandas Bhavsar on 18th August, 1997,
was challenged. Mr. Adsure attempted to convince this Court
that the decisions cited in Atka Subhash Gadia's case (supra)
and Sayed Taher Bawamiya's case (supra), were per incuriam, G
since the Hon'ble Judges did not have the opportunity to
consider the effects of the enactment of the Right to Information
Act in 2005. Mr. Adsure made special mention of the Writ
Petitions filed by Choith Nanikram Harchandai (Writ Petition
(Crl) No.88 of 2010) and Suresh Hotwani & Anr. (Writ Petition
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[2012] 7 S.C.R.
A
(Crl) No.35 of 2011), wherein the detention orders and grounds
had been provided under the R.T.I. Act, 2005, before the same
were executed. Following the same line of arguments advanced
by Mr. Rohatgi, Mr. Adsure also laid stress on the observations
made in Alka Subhash Gadia's case (supra) (paragraph 12)
B
where other than the five exceptions ultimately culled out in
paragraph 30 of the judgment, various other situations
entertaining a petition for quashing of detention order have also
been indicated. Mr. Adsure also referred to the decisions of
this Court in (i) Alpesh Navinchandra Shah vs. State of
C
Maharashtra [(2007) 2 SCC 777]; (ii) State of Maharashtra vs.
Bhaurao Punjabrao Gawande [(2008) 3 SCC 613]; and (iii)
Rekha vs. State of Tamil Nadu [(2011) 5 SCC 244], wherein
the detention orders were set aside on the ground that the
purpose for issuance of a detention order is to prevent the
0
detenu from continuing his prejudicial activities for a period of
one year, but not to punish him for something done in the
remote past. Mr. Adsure contended that the very concept of
preventive detention is to prevent a person from indulging in
activities which were prejudicial to the State and society.
However, there would have to be a nexus between the detention
E
order and the alleged offence in respect whereof he was to be
detained and in the absence of a live link between the two, the
detention order could not be defended.
13. On the same lines, Mr. Adsure referred to the decision
F
in Rekha's case (supra), wherein this Court had held that when
the ordinary criminal law of the land is able to deal with a
situation, then recourse to preventive detention law will be
illegal. Mr. Adsure urged that the orders of detention which
violated the aforesaid principles could not, therefore, be
G sustained and could also be challenged at the pre-execution
stage.
14. Appearing on behalf of the Union of India, learned
Additional Solicitor General, Mr. P.P. Malhotra, contended in
H
response to the first point raised, that the grounds for
SUBHASH POPATLAL DAVE v. UNION OF INDIA
79
AND ANR. [ALTAMAS KABIR, J.]
intervention at the pre-detention stage, as indicated in Alka A
Subhash Gadia's case (supra), are exhaustive and not
illustrative, and had been so held in subsequent decisions of
this Court, and in particular, the decision of a Three-Judge
Bench in the case of Sayed Taher Bawamiya (supra). The
learned ASG contended that in the said case it had also been
B
sought to be argued that the exceptions in Alka Subhash
Gadia's case (supra) were not exhaustive, but merely illustrative,
but the Three-Judge Bench had rejected such contention upon
holding that in Alka Subhash Gadia's case (supra), it is only
in the five types of instances indicated, that the Courts may c
exercise its discretion and jurisdiction under Article 226 and
32 of the Constitution at the pre-execution stage. The learned
ASG laid stress on the observations made in paragraph 7 of
the judgment wherein the learned Judges had observed that in
Alka Subhash Gadia's case (supra) it was only in the five types D
of instances that the Courts could exercise its discretion and
jurisdiction at the pre-execution stage. Reference was also
made to another Three-Judge Bench decision of this Court in
Naresh Kumar Goyal vs. Union of India [(2005) 8 SCC 276],
wherein it was, inter alia, observed that the refusal by the Courts
E
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 the abandonment of the said power
or to their denial to the proposed detenu, but prevents their
abuse and the perversion of the law in question.
F
15. The learned ASG also referred to the decision of this
Court in Union of India vs. Parasmal Rampuria [(1998) 8 SCC
402], wherein this Court directed the detenu to surrender and
thereafter to make a representation challenging the detention
order, which could be examined on merits. The entire focus of G
the submissions made by the learned ASG was centered
around the decision in Sayed Taher Bawamiya's case (supra)
and he tried to make a distinction between the same and the
decision in Deepak Bajaj's case (supra), which the learned
ASG pointed out, was a decision of two Judges of this Court.
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Even with regard to the decision in Rajinder Arora's case
(supra), the learned ASG pointed out that the decision was
based on ground nos.3 and 4 of the decision in Alka Subhash
Gadia's case (supra).
8
16. As to the decision in Rekha's case (supra), the learned
ASG pointed out that this was not a case of pre-detention! but
a criminal appeal in which the orders of detention had been
challenged. The learned ASG submitted that since the
challenge was not at the pre-execution stage, the judgment in
Rekha's case was not relevant in deciding the issue involved
C
in this case.
17. As to the other decisions cited on behalf of the
Petitioners, such as in Romesh Thappar's case (supra) and
in K.K. Kochunni's case (supra), the learned ASG submitted
D that the said decisions relate to the width and scope of Articles
19 and 21 of the Constitution and there was no challenge
therein that the decision in Alka Subhash Gadia's case (supra)
was erroneous.
E
18. On the second point relating to applicability of the RT.I.
Act, 2005, the learned ASG submitted that while the Preamble
to the Act stipulates that it had been passed to promote
transparency and accountability in the working of every public
authority, certain restrictions had been imposed on divulging
F
certain information as indicated in Section 8 of the Act.
Referring to clause (a) of Section 8 of the aforesaid Act, the
learned ASG submitted that it had been stipulated that
notwithstanding anything contained in the Act, there would be
no obligation to any citizen to give information, disclosure of
which would prejudicially affect the economic interest of the
G State, relations with foreign States or such information which
would impede the process of investigation or the apprehension
or prosecution of offenders. The learned ASG also pointed out
that there was no obligation to provide information which relates
to personal information, the disclosure of which has no
H
relationship to any public activity or interest. While referring to
SUBHASH POPATLAL DAVE v. UNION OF INDIA
81
AND ANR.