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PETITIONER: NAND LAL BAJAJ

       Vs.

RESPONDENT: THE STATE OF PUNJAB AND ANR.

DATE OF JUDGMENT15/09/1981

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION:  1981 AIR 2041            1982 SCR  (1) 718  1981 SCC  (4) 327        1981 SCALE  (3)1393  CITATOR INFO :  D          1983 SC 181  (5)  D          1985 SC 511  (6)  F          1985 SC1082  (14)  F          1987 SC 217  (15)  RF         1988 SC 109  (5)  F          1988 SC 481  (6)  RF         1989 SC 389  (8)

ACT:      Right  to   be  defended  by  a  lawyer-Advisory  Board assisted by Public Prosecutor, two attorneys, District Legal Advisor and  one Legal  Assistant,  but  the  detenu  though prayed for  assistance of a legal counsel in writing refused the same-  Whether the  refusal amounts to arbitrariness and unreasonableness  offending   Articles  14  and  21  of  the Constitution-Prevention of  Black-marketing and  Maintenance of Supplies  of Essential  Commodities  Act,  1980,  section 11(4), scope  of-Confirmation of  the detention  order under section 12  of the  Act without  the entire  report  of  the Advisory Board before them vitiates the detention.

HEADNOTE:       Inderjit  alias Billa  has been  detained by  an order dated June  1, 1981  passed by the District Magistrate under sub-section (2)  of section  3 of  the Prevention  of Black- marketing  and   Maintenance  of   Supplies   of   Essential Commodities Act,  1980 (PBMSECA).  The detenu  submitted his representation challenging the order of detention on various grounds. He  had also  made a  request in writing that he be allowed the  assistance of counsel during the hearing before the Advisory Board, but the Government did not accede to his request in  view of  section 11 of the Act. On the contrary. at the  time of  hearing before the Advisory Board the State was assisted by Public Prosecutor, two attorneys, a District Legal Advisor and a Legal Assistant. Even at this stage, the detenu requested  in writing  for aid  of a  counsel but the same  was  rejected.  The  State  Government  confirmed  the detention under  section 12  of the  Act. The  father of the detenu, therefore,  challenges the  order of confirmation of the detention by the State.      Allowing the writ petition, the Court. ^

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    HELD 1:1.  Under Article  22(3)(b) of the Constitution, the right to consult and be defended by a legal practitioner of his  choice is  denied to  any person  who is arrested or detained under  any law  providing for preventive detention. Subsection (3)  of section  11 of  the Prevention  of Black- marketing  and   Maintenance  of   Supplies   of   Essential Commodities Act,  1980 is  undoubtedly  in  conformity  with Article 22(3)  (b) of  the Constitution.  Normally,  lawyers have no  place in the proceedings before the Advisory Board. [723 D]      1:2. Upon the terms of sub-section (4) of section 11 of the Act  the detenu  had no right to legal assistance in the proceedings  before  the  Advisory  Board  but  it  did  not preclude the  Board to  allow such  assistance to the detenu when it  allowed the  State to be represented by an array of lawyers. Smt.  Kavita v.  The State  of Maharashtra  & Ors., [1982] 1 SCR p. 138 is an authority for the proposition that while there  is no  right under section 8(e) of the COFEPOSA Act to legal 719 assistance  to  a  detenu  in  the  proceedings  before  the Advisory Board  is entitled  to make  such a  request to the Board and the Board is bound to consider such a request when so made. [727 G-H, 728 A-B]      Smt. Kavita  v. The State of Maharashtra & Ors., [1982] 1 SCR p. 138 distinguished.      2. The  Advisory Board  is entitled  to devise  its own procedure. The  functions of  the Advisory  Board are purely consultative. It  is an  independent body  constituted under section 9  of the  Act consisting  of a sitting judge as the Chairman and  not less  than two  other members,  who may be sitting or  retired judges of the High Court. It is expected that the  Advisory Board  would set  in a fair and impartial manner in  making a  report whether  or not there is, in its opinion, sufficient  cause for  the detention  of person. In coming  to  that  conclusion,  the  Board  has  to  make  an objective determination  on the question as to whether there was sufficient material on which the subjective satisfaction of the detaining authority could be based. Under sub-section (1) of  section 11  of the  Act, the Advisory Board may also call for  such further  information as it may deem necessary for the  appropriate Govt. Or from the person ’concerned and if, in  any particular case, it considers essential to do so or if  the person  concerned desires to be heard, shall hear him in  person. Arbitrariness  is  the  very  antithesis  of Article 14.  The principle of reasonableness is an essential element  of  equality  and  the  procedure  contemplated  by Article 21  must answer  the test of reasonableness in order to be in conformity with Article 14. The history of personal liberty is largely the history of procedural safeguards. The need for  observance of  procedural safeguards, particularly in cases  of deprivation  of life and liberty is, therefore, of prime  importance to  the body politic. In the context of ’deprivation of  life and  liberty’ under  Article  21,  the ’procedure established  by law’ carried with it the inherent right to  legal assistance. The right to be heard before the Advisory Board  would be,  in many cases, of little avail it did not  comprehend the  right to  be heard  by the counsel. [723 D-G, 725 C-D, F, 726 B-C]      E.P. Royappa  v. Tamil  Nadu, [ 1971] 2 SCR 348, Maneka Gandhi v.  Union of India. [1978] 2 SCR 621; Francis Coralie Mullin v.  The Administrator,  Union Territory  of Delhi and Ors. [1981] 2 SCR 516 at 531; reiterated.      3. The State Government while confirming the detention- order under section 12 of the Act has not only to peruse the

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report of  the Advisory Board, but also to apply its mind to the material  on record. If the record itself was not before the State Government as is evident from there turns filed in reply to  the writ  petition before  this Court,  it follows that the  order passed by the State Government under section 12 of  the Act was without due application of mind, which is a serious  infirmity in  the case  which makes the continued detention of the detenu illegal. [728 B-D]      OBlTER:- It  is expected that Parliament while making a law regulate  the procedure  before an  Advisory Board under Article 22(7)  (c) of  the Constitution  should provide  the right to  consult and be defended by a legal practitioner of his choice.  It is incomprehensible that a person committing a crime should 720 have under  Article 22(1)  of the  Constitution the right to consult and  be defended  by a  legal  practitioner  of  his choice, but  a person  under preventive detention more often than not  for his  political beliefs  should be  deprived of this valuable  right. It  cannot be  denied that  preventive detention is  an anachronism  in a  democratic society  like ours. The  detention of  individuals without  trial for  any length of  time, however  short, is wholly inconsistent with the basic ideals of a parliamentary system of government. In the nature  of things,  under the law as it exists, a person under  preventive   detention  is   not  entitled  to  legal assistance. The  matter is essentially political and as such it is  the concern  of the  statesmen and, therefore, within the domain of the Legislature, and not Judiciary. [726 C-F]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ  Petition  (Criminal)  No. 4975 of 1981.      (Under Article 32 of the Constitution)      Kapil Sibal,  Ramesh C.  Pathak, Subhash  Sharma. R.  K Khinria and R.K. Handa for the Petitioner.      O.P. Sharma and M. S. Dhillon for the Respondent.      The Judgment of the Court was delivered by      SEN, J.  This is  a  petition  under  Art.  32  of  the Constitution by  one Nand  Lal Bajaj  for the  issuance of a writ of habeas corpus for the release of his son, Inderjit @ Billa, who has been detained by an order of detention passed by the  District  Magistrate,  Ropar,  under  s.  3  of  the Prevention of  Blackmarketing and Maintenance of Supplies of Essential Commodities  Act, 1980  (hereinafter  called  ’the Act’), on  being satisfied  that his detention was necessary with a  view to  preventing him  from acting  in any  manner prejudicial to  the maintenance  of supplies  of commodities essential to the life of the community.      Various  grounds   have  been   taken  challenging  the validity of  the order of detention, but it is not necessary for us to deal with them all as the view that we take on one of them  is sufficient  to dispose of the petition. The main contention is  that the  procedure adopted  by the  Advisory Board in  allowing legal assistance to the State and denying such  assistance  to  the  detenu  was  both  arbitrary  and unreasonable and thus violative of Art. 21 read with Art. 14 of the Constitution.      First as  to the  facts. On  June 1, 1981, the District Magistrate passed  an order of detention under sub-s. (2) of s. 3 of the Act on 721 being satisfied  that detention  of Inderjit  was  necessary

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with a  view to  preventing him  from acting  in any  manner prejudicial to  the maintenance  of supplies  of commodities essential to  the community,  and as  required by sub-s. (3) thereof, made  a report  forthwith to  the State  Government together with  the grounds  on which  the order of detention had been made and the State Government approved of the same. The detenu  was apprehended on June 11, 1981 and served with the order of detention together with the grounds and, in due course, the  detenu submitted his representation challenging the order  of detention  to the  State Government. He made a request in  writing that  he be  allowed the  assistance  of counsel during  the hearing  before the  Advisory Board, but the Government  did not  accede to  his request. However. it appears that  the detaining authority was represented by the State counsel at the hearing. The detenu thereupon asked the Advisory Board  that he  may also be afforded an opportunity for legal  assistance. What  transpired before  the Advisory Board can best be stated in the words of the petitioner. The relevant averment in para 17 of the petition is as follows:           Before the  commencement of  these proceedings the      detenu requested  the State  Government in writing that      he be  allowed assistance  of counsel during the course      of the  proceedings before the Advisory Board. The said      request was  denied. The  detenu to  his utter surprise      found that  there he  had to  place his case before the      Advisory Board without assistance of Counsel, the order      of detention was defended by State Counsel. The lawyers      representing  the  State,  during  the  course  of  the      proceedings before  the  Advisory  Board  included  the      District Attorney  and the Additional District Attorney      who were assisted by the District Legal Advisor and one      legal assistant.  The  detenu  had  also  requested  to      Advisory  Board   verbally  that   he  be  allowed  the      assistance  of   counsel  during   the  course  of  the      proceedings.. (emphasis added) In answer  to the  rule nisi,  the District Magistrate Ropar who  is   the  detaining  authority,  has  filed  a  counter affidavit by  which he  ex- plained  the circumstances which led to the issue of the detention order. In reply to para 17 of the petition, it is averred:           In reply  to para  17 of the petition it is stated      that section  11(4) of the Prevention of Blackmarketing      and Maintenance  of Supplies  of Essential  Commodities      Act, 722      1980 prohibited  the assistance  of  a  lawyer  to  the      detenu before  the proceedings of Advisory Board, which      are  confidential.   However  the   Advisory  Board  is      competent to  call any information from the appropriate      Govt. as laid in section 11(1) of the Act. It is  thus manifest  that there  was  no  traverse  of  the specific allegation  made by  the petitioner  that while the Advisory Board  allowed legal  assistance to  the  detaining authority, there  was denial  of such  an opportunity to the detenu. In  substance, the District Magistrate does not deal with the facts but states the law.      Despite the  order of  this Court for the production of the file  containing the  proceedings of the Advisory Board, all that  was shown  to us  was the  report of  the Advisory Board. We  were in  formed that  the record was not with the State Government but with the Board. It was represented that the Advisory Board does not forward its records because they are confidential.  In the  absence of ) the record, there is no other  alternative but to proceed on the allegations made by the  petitioner. The  report of  the Board  does indicate

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that the Public Prosecutor who was present was questioned on one of  the aspects  of the  matter.  It  also  records  the presence of two Additional District Attorneys.      It is  argued on  behalf of the State that under sub-s. (4) of  s. 11  of the Act the detenu was not entitled to any legal assistance  before the  Advisory Board. The submission is that  the proceedings  of the Board and its report except that part of the report in which the opinion of the Board is expressed, are  confidential.  Therefore,  lawyers  have  no place in the proceedings before the Advisory Board.      It  is  further  argued  that  the  Advisory  Board  is entitled to  devise its  own procedure.  Our  attention  was drawn to  sub-s. (I)  of s.  11 of  the Act, and it is urged that the  Advisory Board  is entitled  not only to look into the record  and see  whether there was any material on which the order  of detention  could be  passed under  s. 3 of the Act, but  may also  call for any such further information as it may  deem necessary.  Sub-ss. (I)  of the  Act  on  which reliance has been placed by the State are as follows:           11.  (1)   The   Advisory   Board   shall,   after      considering the  materials placed  before it and, after      calling for  such further  information as  it may  deem      necessary from the appropriate 723      Government or  from any  person called  for the purpose      through the  appropriate Government  or from the person      concerned, and if, in any particular case, it considers      it essential  so to  do  or  if  the  person  concerned      desires to  be heard,  after  hearing  him  in  person,      submit its  report to the appropriate Government within      seven weeks  from the  date of  detention of the person      concerned.           (4) Nothing  in this  section  shall  entitle  any      person against  whom a detention order has been made to      appear  by   any  legal   practitioner  in  any  matter      connected with the reference to the Advisory Board, and      the proceeding  of the  Advisory Board, and its report,      excepting that  part of the report in which the opinion      of  the   Advisory  Board   is  specified,   shall   be      confidential. Under Art.  22(3) (b)  of the  Constitution,  the  right  to consult and  be defended  by a  legal  practitioner  of  his choice is  denied to  any person who is arrested or detained under any law providing for preventive detention. Sub-s. (4) of s.  11 of  the Act is undoubtedly in conformity with Art. 22(3) (b)  of the  Constitution. Normally,  lawyers have  no place in  the proceedings  before the  Advisory  Board.  The functions of  the Advisory Board are purely consultative. It is an  independent body  constituted under  s. 9  of the Act consisting of  a silting  Judge as the Chairman and not less than two  other members who may be sitting or retired judges of the  High Court.  It is  expected that the Advisory Board would act  in a fair and impartial manner in making a report whether or  not there  is, in  its opinion, sufficient cause for the detention of a person. In coming to that conclusion, the Board  has to  make an  objective determination  on  the question as  to whether  there was  sufficient  material  on which the subjective satisfaction of the detaining authority could be  based. Under  sub-s. (I)  of s. 11 of the Act, the Board is  not only  entitled to look into the record and see whether there  was  any  material  on  which  the  order  of detention could  be passed  under s.  3 of  the Act, but may also call  for such  further  information  as  it  may  deem necessary from the appropriate Government or from the person concerned and  if, in  any  particular  case,  it  considers

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essential to  do so or if the person concerned desires to be heard, shall  hear him  in person.  The Board is entitled to devise its own procedure.      It is the arbitrariness of the procedure adopted by the Advisory  Board   that  vitiates   the  impugned   order  of detention. There is no 724 denying the  fact that  while the  Advisory Board disallowed the detenu’s  request for  legal assistance,  it allowed the detaining authority to be represented by counsel. It appears that the  Advisory Board  blindly applied  the provisions of sub s.  (4) of  s. 11  of the  Act to the case of the detenu failing  lo   appreciate  that  it  could  not  allow  legal assistance to  the detaining  authority and deny the same to the detenu.  The Advisory  Board is  expected to  act  in  a manner which  is just  and fair  to both  the  parties.  The report of  the Board  placed before us shows that the detenu exercised his  right to recall some of the witnesses for the purpose  of  cross-examination  We  are  informed  that  the hearing before  the Advisory  Board went  on for 4 to 5 days and there were as many as 11 witnesses cross-examined by the detenu. It cannot be, as is suggested by the counsel for the State, that  the lawyers  representing the  State Government did not participate in the proceedings. On the contrary, the report itself  shows that  the Public  Prosecutor was called upon to  explain some aspects of the case. If the matter was so intricate,  the Advisory  Board should  have ensured that both the  parties  had  equal  opportunity  to  place  their respective cases.  It  appears  that  the  dice  was  loaded against the  detenu in  that whereas  he had  to go  without legal assistance, the State Government had the benefit of an array of lawyers.      The expression  ’procedure established  by law’  in the context of deprivation of life and liberty under Art. 21 was interpreted in  Maneka Gandhi  v. Union  of India(l) and the interpretation so  put has  been  treated  as  involving  an enlargement of  the  right  conferred  by  Art.  21  of  the Constitution. As  limited to  the procedure, the judges were agreed that  the procedure  must be  reasonable and fair and not arbitrary  or capricious.  For,  if  the  procedure  was arbitrary, it  would violate  Art. 14  since Art.  14 is not consistent with  any arbitrary power.(2) In interpreting the expression ’procedure  established by  law’ in  Art. 21 with reference to  Art. 14  of the  Constitution,  Bhagwati,  J., observed(3):           We must reiterate here what was pointed out by the      majority in E.P. Royappa v T.N.(4) namely, that ’from a      positivistic point  of view,  equality is antithetic to      the rule  of law in a republic, while the other, to the      whim and caprice 725      of an  absolute monarch.  Where an act is arbitrary, it      is implicit  in it that it is unequal both according to      political logic and constitutional law and is therefore      violative  of   Art.  14’.   Article  14   strikes   at      arbitrariness in  State action and ensures fairness and      equality of treatment. The principle of reasonableness,      which  legally   as  well  as  philosophically,  is  an      essential  element  of  equality  or  non-arbitrariness      pervades Article  ’4 like  a brooding  omnipresence and      the procedure  contemplated by  Article 21  must answer      the test of reasonableness in order to be in conformity      with Article  14. It  must be ’right and just and fair’      and not  arbitrary, fanciful  or oppressive, otherwise,      it would  be no procedure at all and the requirement of

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    Article 21 would not be satisfied. Arbitrariness  is  the  very  antithesis  of  Art.  14.  The principle of  reasonableness  is  an  essential  element  of equality and  the procedure  contemplated by  Art.  21  must answer  the  test  of  reasonableness  in  order  to  be  in conformity with Art. 14.      Among  the   concurring  opinions,  Krishna  Iyer,  J., although he  generally agreed with Bhagwati, J., goes a step forward by observing(l):           Procedural  safeguards   are   the   indispensable      essence of  liberty. In fact, the history of procedural      safeguards and the right to a hearing has a human-right      ring. In  India, because of poverty and illiteracy, the      people are  unable to  protect and defend their rights:      observance of  fundamental rights  is not  regarded  as      good politics and their transgression as bad politics. In short,  the history  of personal  liberty is  largely the history of procedural safeguards. The need for observance of procedural safeguards,  particularly in cases of deprivation of life  and liberty  is, therefore,  of prime importance to the  body   politic.  In   Francis  Coralie  Mullin  v.  The Administrator, Union  Territory of  Delhi  and  ors.(2)  the inter-relation between  Arts. 21  and 14 of the Constitution was brought out by Bhagwati, J. in these words :           The right  of detenu to consult a legal adviser of      his choice  for any  purpose not necessarily limited to      defence 726      in a  criminal proceeding but also for securing release      from preventive  detention or filing a writ petition or      prosecuting any  claim or proceeding, civil or criminal      is obviously  included in  the right to live with human      dignity and  is also  part of  personal liberty and the      detenu cannot  be deprived  of this  right nor can this      right of  the  detenu  be  interfered  with  except  in      accordance with  reasonable, fair  and  just  procedure      established by a valid law. It is  increasingly felt that in the context of ’deprivation of  life   and  liberty’   under  Art.  21,  the  ’procedure established by  law’ carried  with it  the inherent right to legal  assistance.  Apart  from  authority  it  is  easy  to appreciate that  in overwhelming  majority of cases a detenu can do  nothing to  help himself  before the Advisory Board. The right to be heard before the Advisory Board would be, in many cases,  of little  avail if  it did  not comprehend the right to be heard by counsel. It is expected that Parliament while making  a law  to regulate  the  procedure  before  an Advisory Board  under Art.  22 (7)  (c) of  the Constitution should provide  the right  to consult  and be  defended by a legal practitioner  of his  choice. It  is  incomprehensible that a  person committing  a crime  should have  under  Art. 22(1) of  the Constitution  the  right  to  consult  and  be defended by a legal practitioner of his choice, but a person under preventive  detention, more  often than  not  for  his political beliefs,  should  be  deprived  of  this  valuable right. It  cannot be  denied that preventive detention is an anachronism in a democratic society like ours. The detention of individuals without trial for any length of time, however short, is  wholly inconsistent  with the  basic ideals  of a parliamentary system of government. In the nature of things, under the  law as  it  exists,  a  person  under  preventive detention is  not entitled  to legal assistance. However, we think it is futile for us to attempt to project our personal views in a matter which lies in the realm of decision-making of Parliament.  The matter  is essentially  political and as

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such it  is the  concern of  the statesman  and,  therefore, within the domain of the Legislature, and not the Judiciary.      In Smt.  Kavita v. The State of Maharashtra and Ors (1) the Court  recently had an occasion to deal with s. 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,  1974, which  is in pari materia with sub-s. (4) of  s. 11  of Act.  The Court speaking through Chinnappa Reddy, J. Observed: 727           It is  true that  while s.  8  (e)  disentitles  a      detenu from claiming as of right to be represented by a      lawyer, it  does  not  disentitle  him  from  making  a      request for the services of a lawyer. The  learned  Judge  emphasised  that  "as  often  than  not adequate  legal   assistance  may   be  essential   for  the protection of  the Fundamental to Right to life and personal liberty guaranteed by Article 21 of the Constitution and the right to  be heard  given to  a detenu by s. 8 (e), COFEPOSA Act"  and   observed  that   this  valuable   right  may  be jeopardized and  reduced to mere nothing with adequate legal assistance, in  the light of the intricacies of the problems involved and  other relevant factors. He then went on to say whether or  not legal  assistance should  be afforded by the Advisory Board  must necessarily  depend on  the  facts  and circumstances of each individual case and observed:           Therefore, where  a detenu  makes  a  request  for      legal  assistance,   his  request   would  have  to  be      considered on its own merit in each individual case. In      the present  case, the  Government merely  informed the      detenu that he had no statutory right to be represented      by a lawyer before the Advisory Board. Since it was for      the Advisory Board and not for the Government to afford      legal assistance  to the detenu the latter, when he was      produced before  the Advisory  Board, could have, if he      was so minded, made a request to the Advisory Board for      permission to be represented by a lawyer. In that  case, there  was no  denial of  procedural fairness which is  a part  of the  fundamental right guaranteed under Art. 21  of the Constitution, since no such request was made by the  detenu before  the Advisory  Board. The  decision in Kavita’s case  (supra) is,  however, an  authority  for  the proposition that  while there  is no right under s. 8 (e) of the COFEPOSA  Act to  legal assistance  to a  detenu in  the proceedings before  the Advisory  Board, he  is entitled  to make such  a request  to the Board and the Board is bound to consider such  a request  when so made. In the present case, the detenu  made such  a request,  but in the absence of the record of  the Advisory  Board, it  is not possible to infer whether the  request was  considered. Even if it was denied, as the  petitioner himself  alleges, there  was no  rational basis for  a differential  treatment. There  is no denial of the fact that while the detenu was not afforded legal assis- 728 tance, the detaining authority was allowed to be represented by counsel.  It is  quite clear upon the terms of sub-s. (4) of s.  l l  of the Act that the detenu had no right to legal assistance in the proceedings before the Advisory Board, but it did  not preclude  the Board  to allow such assistance to detenu, when  it allowed  the State  to be represented by an array of lawyers.      The matter  can be  viewed from  another angle. We were informed that  the Advisory Board did not forward the record of its  proceeding to  the State  Government. If that be so, then procedure  adopted  was  not  in  consonance  with  the procedure established  by law.  The State  Government  while

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confirming the  detention order  under s.  12 of the Act has not only  to peruse  the report  of the  Advisory Board, but also to  apply its mind to the material on record itself was not before  the State  Government, it follows that the order passed by  the State  Government under  s. 12 of the Act was without due application of mind. This is a serious infirmity in the  case which  makes the  continued  detention  of  the detenu illegal.      We refrain  from expressing  any opinion  on the  other grounds raised.  It appears  to  us  prima  facie  that  the grounds for  detention set  out the  facts  with  sufficient degree of particularity and that they did furnish sufficient nexus  for   forming  the  subjective  satisfaction  of  the detaining authority.  It seems  to  us  that  the  order  of detention  cannot   also  be  challenged  that  the  grounds furnished were vague or indefinite or lacking in particulars or were  not adequate  or sufficient for the satisfaction of the detaining authority, or, for that matter, for the making of an effective representation.      For the  reasons stated  above, the  order of detention passed by  the District Magistrate, Ropar dated June 1, 1981 is quashed  and we  direct that  the detenu  Inderjit  alias Billa be set at liberty forthwith. V. D. K.                                   Petition allowed. 729