Supreme Court of India
Additional Secretary To The Government ... vs Smt. Alka Subhash Gadia And Anr on 20 December, 1990
Equivalent citations: 1990 SCR, SUPL. (3) 583 1992 SCC SUPL. (1) 496
PETITIONER:
ADDITIONAL SECRETARY TO THE GOVERNMENT OFINDIA AND ORS.
Vs.
RESPONDENT:
SMT. ALKA SUBHASH GADIA AND ANR.
DATE OF JUDGMENT20/12/1990
BENCH:
SAWANT, P.B.
BENCH:
SAWANT, P.B.
AHMADI, A.M. (J)
AGRAWAL, S.C. (J)
CITATION:
1990 SCR Supl. (3) 583 1992 SCC Supl. (1) 496
JT 1991 (1) 549 1990 SCALE (2)1352
ACT:
Constitution of India, 1950: Articles 14, 19, 21 and
22--Liberty of a person--Deprival of--Whether permissible
without apprising grounds of arrest--Whether State required
to disclose facts in advance.
Articles 32 and 226--Jurisdictionary powers of judicial
review-Whether Courts could refuse to exercise--Non-inter-
ference with the termination order at pre-execution
stage--Whether amounts to abandonment of power and denial to
the proposed detenu remedy of judicial review and right to
challenge the order.
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974: Section 3(1)--Detention
order--Whether could be challenged before arrest of proposed
detenu--Whether proposed detenu or somebody on his behalf
entitled to the order prior to its execution at least to
verify whether it could be challenged on limited grounds
available--Whether the order and grounds to be served on the
proposed detenu in advance.
HEADNOTE:
An order of detention passed against the first respond-
ent's husband under Section 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974 could not be served on the proposed detenu as he was
absconding. Hence a declaration was made that he was a
person who fell within the category mentioned in Section
2(b) of the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976. Thereafter, a notice was
issued to him under sub-section (1) of section 6 of the
SAFEMA to show cause as to why the properties mentioned in
the schedule to the notice should not be forfeited to the
Central Government. A copy of the notice along with the
schedule and the copy of the reasons for forfeiture was also
sent to the first respondent.
The first respondent filed writ petition in the High
Court challenging the detention order as well as the show
cause notice. The High Court held that the writ petition was
maintainable for challenging the
584
detention order even though the detenu was not served with
the order and had thus not surrendered to the authorities,
that the detention order, the grounds of detention, and the
documents relied upon for passing the detention order be
furnished to the detenu, and to the counsel for the first
respondent and that they should also be produced before the
court.
A day before the matter was to come for directions an
affidavit was filed on behalf of the appellants stating that
under Article 22(5) of the Constitution the grounds of
detention had to be given to the person when he was de-
tained, and therefore, the detaining authority could not be
compelled to furnish the documents to anybody else other
than the detenu, after he was detained. However, the author-
ity was willing to produce the documents for the perusal of
the Court without showing them first to the first respond-
ent. Finding that the appellants had not made any applica-
tion for any extension in time to carry out the orders of
the Court, nor made any statement expressing their difficul-
ty to comply with the order, the High Court held that the
officers were guilty of contempt of court, and directed the
matter to be listed for taking appropriate action for con-
tempt of court. At that stage, Special Leave Petitions were
filed before this Court.
It was contended on behalf of the appellants that since
the detention law was constitutionally valid, the order
passed under it could be challenged only in accordance with
the provisions of, and the procedure laid down, by it, and
the High Court and this Court should not exercise their
extraordinary jurisdiction in a manner which would enable a
party to by-pass the machinery provided by the law, that
unlike the order passed under other laws, the detention
order if stayed or not allowed to be executed would be
frustrated and the very object of the detention law would be
defeated, and therefore, the detention order should in no
case be allowed to be challenged before it was executed and
the detenu was taken in custody; besides the detention
jurisdiction being essentially a suspicion jurisdiction, the
concept of complete justice was alien to detention law; the
liberty guaranteed by Article 21 of the Constitution was
subject to the provisions of Article 22 and, therefore, in a
detention matter the provisions of the two Articles could
not be separated; so long as the detention law was intra-
vires the Constitution, and it stated that the detenu should
be informed of the grounds of his detention only after he
lost his liberty, the detenu could not by resort to Article
226, by-pass the provisions of that law or invite the High
Court to do so and secure the grounds before submitting to
the order; the detention law in question had not taken away
the judicial
585
review of the order passed under it, but only postponed it
by implication and the Courts had done so by a self-regulat-
ed procedure consistent with the object of the law; and the
judicial review under the detention law had to be post-
decisional, that the law by itself did not place any re-
striction on the writ-jurisdiction of the Court; and the
restriction exercised by the Court was self-imposed and was
not inconsistent with the basic structure of the Constitu-
tion.
On behalf of the respondent it was contended, that
Article 22 was an additional protection of liberty which was
guaranteed by Articles 14, 19, and 21 of the Constitution;
an individual had an absolute right to liberty and, there-
fore, the burden was on the State to satisfy that the depri-
vation of the liberty was necessary in the interests of the
general public, security of the State, public order etc.
before apprising him of the grounds of his arrest; and
consequently, it must place all its cards before the Court
before his arrest, particularly when he approached the Court
making a grievance against the order; that the extent of the
right to life and liberty under Article 21 of the Constitu-
tion had been expanded by this Court to include not only the
right to live but also the right to live with dignity, which
was affected the moment the person lost his liberty before
knowing the reasons for the same or having an opportunity to
challenge them; a person could be deprived of his life and
liberty only under a valid law which laid down a fair proce-
dure for deprivation of the liberty of the individual; and
the State could not be said to have adopted a fair procedure
for arrest of a person when it refused to disclose the facts
on the basis of which it proposed to arrest him; and that
judicial review being a part of the basic structure of the
Constitution the power of the High Court under Article 226
of the Constitution could not be circumscribed in any way by
any law, including detention law; and as such it could be
challenged at any stage, and the artificial distinction
between pre-decisional and post-decisional challenge was
inconsistent with and alien to, the wide powers conferred
under Articles 32 and 226 of the Constitution, and that this
Court had in fact, interfered with the detention orders
before the detenus had submitted to them.
Allowing the appeals, this Court,
HELD: 1.1. It is well settled that the fundamental
rights under Chapter III of the Constitution are to be read
as a part of an integrated scheme. They are not exclusive of
each other but operate, and are, subject to each other. The
action complained of must satisfy the tests of all the said
rights so far as they are applicable to individual cases. In
586
particular, Article 22(5) is not the sole repository of the
detenu's rights. His rights are also governed by the other
fundamental rights, particularly those enshrined in Articles
14, 19, and 21. Hence, while examining action resulting in
the deprivation of the liberty of any person, the limita-
tions on such action imposed by the other fundamental
rights, where and to the extent applicable have to be borne
in mind. [592F-G, 593B]
Rustom Cavasjee Cooper v. Union of India, [1970] 3 SCR
530 and Maneka Gandhi v. Union of India, [1978] 2 SCR 621,
relied on.
1.2 While Article 21 permits the State to deprive a
person of his life or personal liberty, provided it is done
strictly according to procedure established by law, this
permission is expressly controlled by Article 22 in cases
both of punitive and preventive detention. By law or proce-
dure is, of course, meant validly enacted law or procedure.
Thus, the provisions of Articles 21 and 22 read together,
make it clear that a person can be deprived of his life or
personal liberty according to procedure established by law,
and if the law made for the purpose is valid, the person who
is deprived of his life or liberty has to challenge his
arrest or detention, as the case may be, according to the
provisions of the law under which he is arrested or de-
tained. [593C-D, 594D]
1.3 Therefore, in the face of the clear provisions of
the Constitution and of the valid Act, it is not open to
contend that the provisions of Articles 14, 19 and 21 of the
Constitution prevent a person being deprived of his liberty
without first apprising him of the grounds of his arrest,
and that since the State has all the facts in its possession
which require the arrest and detention of the person, it
must first disclose the said facts before depriving him of
his liberty. The provisions of Article 22 of the Constitu-
tion and of the Act made thereunder permit the State to
arrest and detain a person without first disclosing the
grounds, even though they are in its possession before or at
the time of his arrest. [608F-G]
1.4 However vital and sacred the liberty of the individ-
ual, the responsible framers of the Constitution, although
fully conscious of its implications, have made a provision
for making a law which may deprive an individual of his
liberty without first disclosing to him the grounds of such
deprivation. [609D]
2.1 Denial of the right to the proposed detenu to chal-
lenge the detention order and the grounds on which it is
made before he is taken in custody does not amount to denial
of remedy of judicial review of the order because there is a
difference between the existence of power and its exercise.
[609E-F]
587
2.2 Neither the Constitution, including the provisions
of Article 22 thereof, nor the COFEPOSA place any restric-
tion on the powers of the High Court and this Court to
review judicially the order of detention. The powers under
Articles 226 and 32 are wide, and are untrammeled by any
external restrictions, and can reach any executive order
resulting in civil or criminal consequences. However, the
Courts have over the years evolved certain self-restraints
for exercising these powers. They have done so in the inter-
ests of the administration of justice and for better and
more efficient and informed exercise of the said powers.
These self-imposed restraints are not confined to the review
of the orders passed under detention law only. They extend
to the orders passed and decisions made under all laws.
[609G-H, 610A]
2.3 It is in pursuance of this self-evolved judicial
policy and in conformity with the self-imposed internal
restrictions that the Courts insist that the aggrieved
person first allow the due operation and implementation of
the concerned law and exhaust the remedies provided by it
before approaching the High Court and this Court to invoke
their discretionary extraordinary and equitable jurisdiction
under Articles 226 and 32 respectively. That jurisdiction by
its very nature is to be used sparingly and in circumstances
where no other efficacious remedy is available. If in every
case a detenu is permitted to challenge and seek the stay of
the operation of the order before it is executed, the very
purpose of the order and of the law under which it is made
will be frustrated since such orders are in operation only
for a limited period. The courts have the necessary power to
entertain grievances against any detention order prior to
its execution, and they have used it in proper cases, al-
though such cases have been few and the grounds on which the
courts have interfered with them are necessarily very limit-
ed in scope and number, viz., where the courts are prima
facie satisfied (i) that the order is not passed under the
Act under which it is purported to have been passed, (ii)
that it is sought to be executed against a wrong person,
(iii) that it is passed for a wrong purpose, (iv) that it is
passed on vague, extraneous and irrelevant grounds or (v)
that the authority which passed it had no authority to do
so. The refusal by the courts to use their extraordinary
powers of judicial review to interfere with the detention
orders prior to their execution on any other ground does not
amount to abandonment of the said power or to their denial
to the proposed detenu, but prevents their abuse and the
perversion of the law. It is always open for the detenu or
anyone on his behalf to challenge the detention order by way
of habeas corpus petition on any ground available to him.
[610A-H]
588
2.4 The judicial review of the detention order is always
available. This applies also to the cases under other laws.
But in a detention case, the stage at which the judicial
review is made by the Court only stands deferred till after
the order is executed. A ground on which a detention order
is challenged which requires investigation and cannot be
adjudicated without hearing the other side and without
proper material, has necessarily to await decision till the
final hearing. In such cases the operation of the order of
detention by its very nature cannot be stayed pending the
final outcome. The only proper course in such cases is to
hear the petition as expeditiously as possible. [611A-B]
3. The detenu is not entitled to the order of detention
prior to its execution even to verify whether it can be
challenged at its preexecution stage on the limited grounds
available, for the reasons that (1) the Constitution and
valid law made thereunder do not make any provision for the
same. On the other hand, they permit the arrest and deten-
tion of a person without furnishing to the detenu the order
and the grounds thereof in advance, (2) when the order and
the grounds are served and the detenu is in a position to
make out prima facie the limited grounds on which they can
be successfully challenged, the courts, have power even to
grant bail to the detenu pending the final hearing of his
petition. Alternatively, the Court can and does hear such
petition expeditiously to give the necessary relief to the
detenu. (3) In the rare cases where the detenu before being
served with them learns of the detention order and the
grounds on which it is made, and satisfies the Court of
their existence by proper affirmation, the Court does not
decline to entertain the writ petition even at the pre-
execution stage, of course, on the very limited grounds
stated above, though the Court, even in such cases, is not
obliged to interfere with the order at that stage and may
insist that the detenu should first submit to it. It will,
however, depend on the facts of each case. Thus, the courts
have power to interfere with the detention orders even at
the pre-execution stage but they are not obliged to do so
nor will it be proper for them to do so save in exceptional
cases. Much less can a detenu claim such exercise of power
as a matter of right. The discretion is of the Court and it
has to be exercised judicially on well-settled principles.
[611C-H]
In the instant case, the proposed detenu is absconding
and had been evading the service of the detention order. The
first respondent who is his wife has sought to challenge the
said order because the show-cause notice under sub-section
(1) of Section 6 of the SAFEMA was issued to him, a copy of
which is also sent to her. Thus, the assistance of the High
Court under Article 226 of the Constitution is sought
589
by the first respondent on behalf of the detenu to secure
the detention order with a view to defend the proceedings
under the SAFEMA. In other words, the proposed detenu is
trying to secure the detention order indirectly without
submitting to it. Moreover, he is also trying to secure the
grounds of detention as well as the documents supporting
them which he cannot get unless he submits to the order of
detention. No prima facie case is made out for challenging
the detention order, which would impel the Court to inter-
fere with it at this pre-execution stage. The High Court,
disregarding the law on the subject and the longsettled
principles on which alone it can interfere with the deten-
tion order at pre-execution stage, has directed the authori-
ties not only to furnish to the detenu the order of deten-
tion but also the grounds of detention and the documents
relied upon for passing the detention order. [612B-E]
In the circumstances, both the orders of the High Court
directing the appellants to furnish to the detenu or to the
first respondent or her counsel the order of detention, the
grounds of detention and the documents supporting them as
well as the contempt notice are clearly illegal and unjusti-
fied and they are accordingly quashed. [613E-F]
Special Reference No. 1 of 1964 [1965] 1 SCR 492; Dwar-
kanath, Hindu Undivided Family v. Income-Tax Officer,
Special Circle, Kanpur & Anr., [1965] 3 SCR 536; State of
Bihar v. Rambalak Singh "Balak" & Ors., AIR 1966 SC 1441;
Khudiram Das v. The State of West Bengal & Ors., [1975] 2
SCR 832 at 842; Francis Coralie Muffin v. Administrator,
Union Territory of Delhi & Ors., [1981] SCC 608; Smt. Poonam
Lata v. M.L. Wadhwan & Ors., [1987] 11 SCR 1123 and S.M.D.
Kiran Pasha v. The Government of Andhra Pradesh & Ors., JT
(1989) 4 SC 366, referred to.
Minerva Mills Ltd. v. Union of India & Ors., [1981] 1
SCR 206; S.P. Sampath Kumar v. Union of India & Ors., [1987]
1 SCC 124 and P. Sambamurthy & Ors. v. State of Andhra
Pradesh & Anr., [1987] 1 SCC 362, referred to.
Jayantilal Bhagwandas Shah etc. v. State of Maharashtra,
[1981] 1 Cr. LJ 767; Abdul Aziz Mohammad v. Union of India,
[1984] Cr. LJ 1307; Omar Ahmed Ebrahim Noormani v. Union of
India & Ors., [1984] Cr. LJ. 1915; Yogesh Shantilal Choksi
v. Home Secretary, Government of Kerala & Anr.. [1983] Cr.
LJ 393 and Simmi v. State of U.P. & Ors., [1985] All. LJ
598, referred to.
590
JUDGMENT:
