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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

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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

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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

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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

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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

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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: