Delay In Right to Represent Vitiates Preventive Detention

Why in News? 

A Bench of Justice Virinder Aggarwal, in Bala v. U.T. Chandigarh and Others (2026), allowed a habeas corpus petition filed under Article 226 of the Constitution and quashed the petitioner's preventive detention, holding that the failure to promptly communicate her statutory right to make a representation to the Central Government, along with prolonged delay in deciding her representations, violated Article 22(5) of the Constitution.

What was the Background of Bala v. U.T. Chandigarh and Others (2026) Case? 

• The petitioner's earlier detention order had been quashed by the Advisory Board on 08.07.2025 (18.07.2025 as per record), following which she was released. 
• Shortly thereafter, FIR No. 103 dated 04.08.2025 was registered against the petitioner and 21 others under Section 21 of the NDPS Act, alleging involvement in the narcotics trade. No search, recovery, or arrest followed. 
• Based substantially on the same material as the earlier (quashed) detention order, with the FIR as the only new circumstance, a fresh detention order dated 01.11.2025 was passed under Section 3 of the PITNDPS Act, 1988. 
• The petitioner was informed of her right to represent to the Detaining Authority, Chief Secretary, and Advisory Board on 03.11.2025, and submitted representations on 26.11.2025. 
• She was informed of her right to represent to the Central Government only on 16.12.2025 — a delay of approximately 45 days — and filed that representation on 24.12.2025. 
• The Advisory Board confirmed her detention on 16.01.2026. The Central Government ultimately rejected her representation only on 02.06.2026 — over five months after it was filed. 
• The petitioner challenged the detention on the ground that this delay rendered her constitutional safeguard under Article 22(5) illusory, relying on Jaseela Shaji v. Union of India (2024), Sarabjeet Singh Mokha v. District Magistrate, Jabalpur (2021). 
• The Chandigarh Administration and Union of India opposed the petition, contending that mere delay does not ipso facto invalidate detention absent want of diligence, relying on Licil Antony v. State of Kerala (2014).

What were the Court's Observations? 

• On the Nature of the Right Under Article 22(5): 
  The Court held that Article 22(5) casts two distinct obligations on the detaining authority — affording the earliest opportunity to represent, and informing the detenue of the bodies to whom such representation may be addressed — and that failure to do so renders the opportunity incomplete, relying on Alfiya A. v. State of Kerala. 
• On the 45-Day Delay in Informing the Right to Represent: 
  The Court found no satisfactory explanation for the 45-day delay in apprising the petitioner of her right to approach the Central Government, holding that this obligation is independent of any question of prejudice and cannot be diluted merely because the detenue may have otherwise acquired knowledge of the right. 
• On Delay in Deciding the Representations: 
  The Court noted that the representation dated 24.12.2025 remained pending for over five months, and the representations dated 26.11.2025 were not decided by the Chief Secretary and Home Secretary until nearly three months later — delays for which no cogent or day-to-day explanation was furnished. 
• On the Standard of Diligence Required: 
  The Court held that preventive detention, being an exceptional inroad into the fundamental right to personal liberty under Article 21, requires the procedural safeguards under Article 22(5) to be complied with with strict, meaningful, and expeditious diligence, and cannot be treated as mere technicalities — relying on Sk. Abdul Karim v. State of West Bengal (1969), Rashid S.K. v. State of West Bengal (1973), Tara Chand v. State of Rajasthan (1981), and Vijay Kumar v. State of J&K (1982). 
• On Cumulative Effect of the Delays: 
  The Court concluded that the cumulative effect of the unexplained delay in informing the right to represent and the subsequent inordinate delay in deciding the representations rendered the continued detention constitutionally unsustainable. 
• The Court accordingly allowed the writ petition, quashed the detention order dated 01.11.2025, and directed that the petitioner be set at liberty forthwith, if not required in any other case.

What is Article 22(5) of the Constitution of India? 

Background & Purpose: 

• Article 22(5) is a constitutional safeguard applicable to persons detained under preventive detention laws. 
• It mandates that the detaining authority communicate to the detenue, as soon as may be, the grounds of detention, and afford the earliest opportunity to make a representation against the order. 

Key Components: 

• Grounds of Detention: Must be communicated to the detenue at the earliest. 
• Right to Represent: The detenue must be informed of the specific authorities/bodies to whom a representation may be made, including the Detaining Authority, State Government, Advisory Board, and Central Government where applicable. 
• Expeditious Consideration: Once made, a representation must be decided with utmost expedition; unexplained delay at any stage — transmission, comments, or decision — vitiates the detention. 

Judicial Position: 

• The right to represent is a substantive constitutional right, not a mere formality (Sk. Abdul Karim, 1969). 
• Even a delay of a few weeks in transmission or decision, if unexplained, has been held sufficient to vitiate detention (Vijay Kumar v. State of J&K, 1982; Tara Chand v. State of Rajasthan, 1981).