INTRODUCTION
Today, I will talk about the case of Sarabjeet
Singh Mokha v. District Magistrate, Jabalpur & Others, 2021 SCC
OnLine SC 1019, wherein the Hon’ble Supreme Court discussed the law relating to
Preventive Detention in India in the context of Article 22 of the Constitution
of India. The facts of the case are not relevant for the purposes of this show
and hence, the same are not being discussed here.
MEANING
Black’s Law Dictionary, Eighth Edition, defines
‘preventive detention’ as “confinement imposed usually on a criminal
defendant who has threatened to escape, poses a risk of harm, or has otherwise
violated the law while awaiting trial, or on a mentally ill person who may
cause harm.”
ARTICLE 22 OF THE CONSTITUTION
With respect to Preventive Detention, Article 22
(4) states that “no law providing for preventive detention shall
authorise the detention of a person for a longer period than three months
unless” a Competent Advisory Board opines that there is sufficient
cause for extending the detention period or such person is detained under any
special law made by the Parliament. Further, Article 22 (5) states that “when
any person is detained in pursuance of an order made under any law providing
for preventive detention, the authority making the order shall, as soon as may
be, communicate to such person the grounds on which the order has been made and
shall afford him the earliest opportunity of making a representation against
the order.”
Now, let us move on to the observations made by
the Court to understand Article 22 and Preventive Detention in a better manner.
OBSERVATIONS BY THE COURT
Firstly, the Court observed that “the text
of Article 22 enshrines certain procedural safeguards, many of which are
otherwise available in the CrPC. In elevating these safeguards to a
constitutional status, the framers imposed a specific “limitation upon the
authority both of Parliament as well as State Legislature to not abrogate”
rights that are fundamental to India's constitution.”
Secondly, the Court explained that “Article
22(5) of the Constitution mandates that: -
(i) The authority making the order shall “as
soon as may be” communicate the grounds on which the order has been made to the
person detained; and
(ii) The detaining authority shall afford to
the person detained “the earliest opportunity of making a representation
against the order.”
Further, “Clause 5 of Article 22
incorporates a dual requirement : first, of requiring the detaining authority
to communicate the grounds of detention as soon as may be; and second, of
affording to the detenu “an earliest opportunity” of making a representation.
Both these procedural requirements are mutually reinforcing. The communication,
as soon as may be, of the grounds of detention is intended to inform the detenu
of the basis on which the order of detention has been made. The expression “as
soon as may be” imports a requirement of immediacy.”
Thirdly, the Court also noted that “the
communication of the grounds is in aid of facilitating the right of the detenu
to submit a representation against the order of detention. In the absence of
the grounds being communicated, the detenu would be left in the dark in regard
to the reasons which have led to the order of detention.”
Fourthly, the Court clarified that “when the
life and liberty of a citizen is involved, it is expected that the Government
will ensure that the constitutional safeguards embodied in Article 22(5) are
strictly observed. We say and we think it necessary to repeat that the gravity
of the evil to the community resulting from anti-social activities can never
furnish an adequate reason for invading the personal liberty of a citizen,
except in accordance with the procedure established by the Constitution and the
laws.”
Fifthly, the Court also stated that “Article
22(4), in guaranteeing a right to make a representation to the detenu,
understandably creates a corresponding duty on the State machinery to render
this right meaningful” and “this right would ring hollow without
a corollary right of the detenu to receive a timely communication from the
appropriate government on the status of its representation-be it an acceptance
or a rejection.”
And lastly, the Court cited the case of Frances
Coralie Mullin v. W.C. Khambra, (1980) 2 SCC 275, wherein the Court
reiterated the principles relating to Preventive Detention as follows: -
“a. The detaining authority must provide the
detenu a very early opportunity to make a representation.
b. The detaining authority must consider the
representation as soon as possible, and this, preferably, must be before the representation
is forwarded to the Advisory Board.
c. The representation must be forwarded to
the Advisory Board before the Board makes its report.
d. The consideration by the detaining
authority of the representation must be entirely independent of the hearing by
the Board or its report, expedition being essential at every stage.”
ENDING REMARKS
Thus, I hope that the law relating to Preventive
Detention in light of Article 22 of the Constitution of India is clear by now.
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