The life and personal liberty protected under Article 21 of the Indian Constitution are sacrosanct and hold a high position in the scale of constitutional values. Personal liberty is, by every reckoning, the greatest of human freedoms mandated under Article 21. Preventive detention is exceptional, being draconian in nature. It can be invoked only if sufficient material is available and if the detaining authority is subjectively satisfied that the detenue is indulging in offences that are detrimental to the national economy. The law prescribes that the provisions governing detention must be meticulously followed, both substantively and procedurally, by the detaining authority.

The filing of an effective representation is a fundamental right of the detenue, guaranteed under Article 22(5) of the Indian Constitution. Needless to say, for the filing of an effective representation, the supply of legible copies of the documents relied upon by the detaining authority is a sine qua non. The non-supply of legible and translated copies of the documents relied upon amounts to a deprivation of the detenue’s ability to make an effective representation. In this background, the proceedings of detention are liable to be vitiated on this ground alone. The refusal to supply the requested documents to the detenue, or the supply of illegible or blurred copies of documents relied upon by the detaining authority, amounts to a violation of Article 22(5) of the Constitution.

The Hon’ble Supreme Court, in the matter of The State of Manipur and Ors. vs. Buyamaym Abdul Hanan @ Anand & Anr. [2022 LiveLaw (SC) 862], settled this issue and held as under:

“24. In other words, the right of personal liberty and individual freedom, which is probably the most cherished, is not, in any manner, to be arbitrarily taken away from an individual, even temporarily, without following the procedure prescribed by law. Once the detenu is able to satisfy the court, while assailing the order of detention before the High Court under Article 226 of the Constitution, that the grounds of detention do not satisfy the rigours of proof as a foundational requirement enabling him to make an effective representation against the detention order under Article 22(5), such detention becomes illegal. We find no error committed by the High Court in setting aside the preventive detention order under the impugned judgment.”

In the matter of The State of Manipur and Ors. vs. Buyamaym Abdul Hanan (supra), the State authorities argued that the issue of non-supply of legible copies was raised for the first time before the High Court and not at any earlier stage before the detaining authority. The Hon’ble Court rejected this argument and held:

“22. It is the admitted case of the parties that Respondent No.1 failed to raise, before the detaining authority, the issue of illegible or blurred copies being supplied to him—copies which were relied upon while passing the detention order. However, the right to make a representation is a fundamental right under Article 22(5) of the Constitution. In order to make an effective representation, the detenu is always entitled to be supplied with legible copies of the documents relied upon by the detaining authority, and the grounds of detention must enable him to do so.”

The central question is: how can the authority claim to have arrived at a subjective satisfaction when the RUDs (Relied Upon Documents) are illegible? The Hon’ble Delhi High Court, in the matter of Neeraj Varshney vs. Ministry of Finance, Department of Revenue [2023 (4) CENTAX 377 (Del)], discussed and decided this issue and held:

“34. In view of the above decisions, the material placed on record, and considering the rival submissions made on behalf of the parties, the first issue is decided in favour of the detenu and against the respondents. We are of the opinion that the RUDs supplied to the detenu, as well as relied upon by the Detaining Authority in arriving at its ‘subjective satisfaction’, were admittedly illegible. This grossly violates the constitutional right to make an effective representation, guaranteed to the detenu under Articles 14, 21, and 22(5) of the Constitution of India.”

Conclusion:

From the above discussion, it is clear that when a person is detained under a preventive detention order, it is the responsibility of the detaining authority to provide a legible and translated copy of the grounds of detention, along with the RUDs and other documents. This enables the detenu to make an effective representation before the concerned authority. It is also evident that failure to supply legible or translated copies of all RUDs renders the order of detention illegal and bad in law.

Thanking you,

R P Singh , Advocate

For

USR Legal Advisors.