Source: Supreme Court 

Why in News?

A bench of Justice PK Mishra, Justice BR Gavai and Justice KV Viswanathan held that the right provided to a person under Article 22 (5) of the Constitution is to afford the detenue the earliest opportunity of making the representation against the order of detention.          

• The Supreme Court held this in the case of Jasleela Shaji v. The Union of India & Ors. 

What is the Background of Jasleela Shaji v. The Union of India & Ors.  Case? 

• The detention order was passed by the Detaining Authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) on 31st August 2023. 
• The detention was done to prevent him from acting in any manner prejudicial to the augmentation of foreign exchange in the future. 
• The detenue was put in prison and the grounds of detention and the relied upon documents were served on him. 
• The detenue was further informed about his right to make representation to the Detaining Authority as well as other authorities.  
• The detenue accordingly made representations to the concerned authorities i.e. the Detaining Authority, the Central Government and the Advisory Board. 
• The Jail Authorities sent the same through ordinary post and neither the Detaining Authority nor the Central Government received the said representations. 
• The Advisory Board opined that there was sufficient cause for detention of detenue and further directed that the detenue be detained for a period of one year from the date of his detention. 
• Aggrieved by the order of detention, the detenue approached the Kerela High Court by way of writ of Habeas Corpus. 
• The said writ came to be rejected and hence the appellant approached the Supreme Court. 

What were the Court’s Observations? 

• The Supreme Court framed two issues to be answered in this case: 
  • Issue 1: Whether non-supply of statements of Ms. Preetha Pradeep (one of the material relied on to detain the appellant) has affected the right of the detenue to make an effective representation under Article 22 (5) of the Constitution of India (COI)? 
  • Issue 2: Whether non-receipt of the representation and the delay in deciding the representation by the Detaining Authority and the Central Government would also affect the right of the detenue under Article 22 (5) of COI?    
• With Respect to Issue 1: The Supreme Court held that it is a settled position that though it may not be necessary to furnish each and every document to which a casual and passing reference has been made, it is imperative that every document relied upon by the Detaining Authority which affects the right of the detenue to make an effective representation under Article 22 (5) of COI must be supplied to the detenue. 
• Thus, the Court decided with respect to issue 1 that non supply of statements of Preetha Pradeep has affected the right of the detenue. 
• With Respect to Issue 2: The Supreme Court held that it has been held in a catena judgments that it is the duty of the transmitting authority to transmit the representation of the detenue promptly. 
• It was finally held by the Court that merely because there has been a casual and callous and in fact negligent approach on the part of the Jail Authorities in ensuring that the representation of the detenu is communicated at the earliest, the valuable right available to the detenu to have his representation decided expeditiously cannot be denied. 
• The Court held that the Competent Authority should decide such representation with utmost expedition so that the valuable right under Article 22 (5) of COI is not denied. 

What is Preventive Detention?

• Preventive Detention means the detention of a person without trial and conviction by a court. Its purpose is not to punish a person for a past offence but to prevent him from committing an offence in the near future.  
• The key laws relating to preventive detention are: 
  • Maintenance of Internal Security Act, 1971 (MISA) 
  • Foreign Exchange Conservation and Prevention of Smuggling Activities, 1974 (COFEPOSA) 
  • Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) 
  • Prevention of Terrorist Activities Act, 2002 (POTA) 
  • Unlawful Activities (Prevention) Act, 2008 (UAPA) 

What is Article 22 of COI? 

• Article 22 of the COI provides for protection against arrest and detention in certain cases. 
• Article 22 of COI has two parts-  
  • The first part deals with ordinary law (Article 22 (1) and (2)) 
  • The second part deals with cases of preventive detention 

What are the Case Laws on Preventive Detention? 

• Tara Chand v. State of Rajasthan (1981) 
  • In case of preventive detention of a citizen Article 22 (5) of the Constitution enjoins obligation on the appropriate Government to afford earliest opportunity to the detenue to make representation. 
  • The mere fact that the meeting of the Advisory Board had been held earlier was not a valid excuse for the detaining authority in not considering the representation of the detenue at all. 
  • An inordinate delay on the part of the Central Government in consideration of the representation of detenue would be in violation of Article 22 (5) of the Constitution. 
• Rattan Singh v. State of Punjab and others (1981) 
  • The laws of preventive detention afford only a modicum of safeguards to persons detained and if freedom and liberty are to have any meaning in our democratic set up it is essential that at least those safeguards are not denied to the detenues. 
  • The failure on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government.