Detenu’s Right Under Article 22(5) of the Constitution

Constitutional mandate guaranteed under Article 22(5) of the Constitution of India

The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.

Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the same as expeditiously as possible.

This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since such a breach would defeat the very concept of liberty–the highly cherished right–which is enshrined in Article 21 of the Constitution.

True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with.

The use of the word “as soon as may be” occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without avoidable delay. What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard.

However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.

See Also : Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police , (1989) 3 SCC 173

In the case of Rajendrakumar Natvarlal Shah v. State of Gujarat and others reported in (1988) 3 SCC 153 and in particular paragraph Nos.8 and 10, wherein the Supreme Court has held as under :

“8. There is an inexorable connection between the obligation on the part of the detaining authority to furnish the ‘grounds’ and the right given to the detenu to have an ‘earliest opportunity’ to make the representation.

Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention.

The requirements of Article 22(5) are satisfied once ‘basic facts and materials’ which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu.

The test to be applied in respect of the contents of the grounds for the two purposes are quite different. For the first, the test is whether it is sufficient to satisfy the authority, for the second, the test is whether it is sufficient to enable the detenu to make his representation at the earliest opportunity which must, of course, be a real and effective opportunity.

The Court may examine the ‘grounds’ specified in the order of detention to see whether they are relevant to the circumstances under which preventive detention could be supported e.g. security of India or of a State, conservation and augmentation of foreign exchange and prevention of smuggling activities, maintenance of public order, etc. and set the detenu at liberty if there is no rational connection between the alleged activity of the detenu and the grounds relied upon, say public order.

Detenu’s Representation

In the case of Abdul Nasar Adam Ismail v. State of Maharashtra and others reported in (2013) 4 SCC 435 and in particular paragraph No.16 of the said decision, which reads as under :

“16. The principles which have been laid down by the Constitution Bench and the other judgments which we have referred to earlier can be summarised.

Article 22(5) of the Constitution casts a legal obligation on the Government to consider the detenu’s representation as early as possible. Though no time-limit is prescribed for disposal of the representation, the constitutional imperative is that it must be disposed of as soon as possible. There should be no supine indifference, slackness or callous attitude. Any unexplained delay would be a breach of the constitutional imperative and it would render the continued detention of the detenu illegal. That does not, however, mean that every day’s delay in dealing with the representation of the detenu has to be explained. The explanation offered must be reasonable indicating that there was no slackness or indifference. Though the delay itself is not fatal, the delay which remains unexplained becomes unreasonable.

The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or the range of delay, but how it is explained by the authority concerned.

If the inter-departmental consultative procedures are such that the delay becomes inevitable, such procedures will contravene the constitutional mandate. Any authority obliged to make order of detention should adopt a procedure calculated towards expeditious consideration of the representation.

The representation must be taken up for consideration as soon as such representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu.”

The above passage is from the latest judgment of Bombay High Court in Shailesh Vs. Commissioner of Police Nagpur City dated 8 May 2015 and in this case the Court after taking into consideration the entire material available on record, finds that there is no substance in the Petition of detenu. The order of detention is therefore perfectly justified and do not find any infirmity in it.