Detenu’s Right To Make Representation Subsists Throughout Preventive Detention; Fixing Time Limits Violates Article 22(5): Manipur High Court

The Court clarified that the right to make a representation and the corresponding duty of the Government to consider it expeditiously subsist throughout the period of preventive detention.

The Court was hearing a habeas corpus petition challenging a preventive detention order passed under the National Security Act, along with subsequent approval and confirmation orders of the State Government.

A Division Bench of Chief Justice M. Sundar and Justice A. Bimol Singh, allowing the petition, observed: “the right of detenu to make a representation and corresponding obligation of the Government to consider the same expeditiously (at the earliest) subsist so long as the preventive detention order operates/detention continues, …in the case on hand, therefore, fixing of twelve days time frame qua representation to the detaining authority and fixing of three weeks time frame for representations to the State and Central Governments is clearly flawed and unacceptable”.

Background

The petitioner was arrested in connection with offences under the UAPA and Arms Act and was remanded to judicial custody. While he remained incarcerated, the sponsoring authority forwarded communications to the District Magistrate recommending preventive detention under the National Security Act.

Acting on these communications, the District Magistrate issued the detention order, which was subsequently approved and confirmed by the State Government after reference to the Advisory Board.

The habeas corpus petition challenged the detention order, approval order, and confirmation order. Although multiple grounds were raised, the challenge was pressed primarily on two legal issues: the absence of material supporting subjective satisfaction regarding the likelihood of bail, and the illegality of time limits fixed for submitting representations.

Court’s Observation

The High Court first examined whether the detaining authority’s subjective satisfaction regarding imminent release of the detenu on bail satisfied constitutional standards. Relying on Supreme Court precedent governing judicial review of preventive detention, it reiterated that such satisfaction may be tested where there is a non-application of mind or absence of rationally probative material.

Applying these principles, the Court found that although the detaining authority recorded that a bail application was pending, it failed to ascertain the status of the application before recording satisfaction. The detention order and grounds referred to a hearing date for the bail application, but did not verify what transpired on that date. This, the Court held, demonstrated non-application of mind.

It further found that there was no material on record indicating any imminent likelihood of bail being granted. The State was unable to point to any such material. Consequently, the Court held that the conclusion regarding the likelihood of release was unsupported by evidence of rational probative value and therefore vitiated.

The Court then examined the second issue relating to time limits imposed for making representations. It noted that the grounds of detention specified that representations to the detaining authority must be made within twelve days and those to the State and Central Governments within three weeks.

The Bench referred Supreme Court’s ruling in Premlata Sharma vs. District Magistrate, Mathura (1998), holding that the right of a detenu to make a representation includes the right to make an effective representation and that such right continues as long as the detention order operates. It was observed that neither the Constitution nor judicial precedent permits prescribing limitation periods for such representations.

The Court rejected the State’s justification that the twelve-day limit corresponded to the statutory validity of detention orders made by officers and that the three weeks was linked to a reference to the Advisory Board. It held that Section 10 of the NSA obligates the Government to place a representation before the Advisory Board only if one is received, and therefore, a detainee’s right cannot be curtailed by imposing deadlines.

The Court emphasised that even if a representation is submitted after three weeks, the Government still has a constitutional duty to consider it for revocation so long as detention continues. As regards representations to the Central Government, the Court noted that no statutory basis exists at all for fixing any time limit.

The Court further observed that prescribing time limits had misled a detenu into believing that he could not make a representation after expiry of the stated period. It recorded that the petitioner had specifically asserted that he refrained from submitting a representation because he believed the prescribed time had lapsed, and that this assertion was not disputed by the State.

The Bench therefore concluded that “the detaining authority has fixed three weeks time frame for representation to the Central Government also”, stating that “this is clearly flawed and this Court has no hesitation in coming to the conclusion that this is an infraction of sacrosanct right enshrined in Article 22 (5) of the Constitution of India”,

Conclusion

The High Court held that the detention order suffered from dual infirmities: absence of material supporting subjective satisfaction regarding the likelihood of bail and an unconstitutional restriction on the right to make representations.

The Court accordingly set aside the detention order, the State Government’s approval and confirmation orders, and directed that the detenu be released forthwith unless required in any other case.

Cause Title: Mutum Ranjan Meitei @ Lamjingba v. State of Manipur & Ors.

Appearances

Petitioner: L. Shashibhushan, Senior Advocate

Respondents: Th. Vashum, Government Advocate; Boboy Potsangbam, CGC

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