RTI Court Decision: No disclosure under RTI at pre-detention stage: SC

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Reported by Ptinews.com on 11 Jul 2012
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New Delhi, Jul 11 (PTI) The state is not under an obligation to disclose under the Right to Information Act the grounds of detention of a person under a preventive detention law before his arrest, the Supreme Court has ruled.

[Sajib Nandi]

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No disclosure under RTI at pre-detention stage: SC


Reported by Ibnlive.in.com on Jul 11, 2012
No disclosure under RTI at pre-detention stage: SC, IBN Live News

New Delhi, Jul 11 (PTI) The state is not under an obligation to disclose under the Right to Information Act the grounds of detention of a person under a preventive detention law before his arrest, the Supreme Court has ruled. A three-judge bench of justices Altamas Kabir, Gyan Sudha Misra and J Chelameshwar said a detune under the preventive detention laws like NSA, COFEPOSA etc is not required to be treated in the same manner as a person arrested in connection with the commission of an alleged offence. "Since clause (5) of Article 22 provides that the grounds for detention are to be served on a detune after his detention, the provisions of Section 3 of the RTI Act, 2005, cannot be applied to cases relating to preventive detention at the pre-execution stage. "In other words, Section 3 of the RTI Act has to give way to the provisions of Clause (5) of Article 22 of the Constitution," said Justice Kabir, writing the judgement for the bench. Under Article 22 of the Constitution, the authorities are under an obligation to disclose to a person the reasons for his or her arrest. "Notwithstanding the provisions of the RTI Act, 2005, the State is not under any obligation to provide the grounds of detention to a detune prior to his arrest and detention, notwithstanding the fact that in the cases of Choith Nanikram Harchandai and Suresh Hotwani & Anr, the grounds of detention had been provided to the detune under the RTI Act, 2005, at the pre-execution stage. "The procedure followed under the RTI Act, in respect of the said writ petitions cannot and should not be treated as a precedent, " the bench said. The apex court gave the ruling while dismissing a bunch of applications seeking disclosure of information under the RTI Act for detunes at the pre-detention stage.

The apex court said its earlier judgement in the Choith The apex court said its earlier judgement in the Choith Nanikram Harchandai and Suresh Hotwani case wherein it was ruled that such disclosure was mandatory should not be treated as a precedent. It said the provisions relating to production of an arrested or detained person, contained in clauses (1) and (2) of Article 22 of the Constitution, have excluded their benefit in respect of a person detained under any preventive detention law. The bench said sub section (1) of Section 8 of the RTI Act, made an exception to the disclosure of information which could be contrary to the interests of the nation or which over-weighed the personal interests of the citizen. The apex court also ruled that powers of the Supreme Court and high courts for protecting the fundamental rights of the citizens cannot be curtailed by any judicial order. "The exercise of powers vested in the superior courts in judicially reviewing executive decisions and orders cannot be subjected to any restrictions by an order of the court of law. "The most precious right of a citizen is his right to freedom and if the same is to be interfered with, albeit in the public interest, such powers have to be exercised with extra caution and not as an alternative to the ordinary laws of the land,' the bench said.

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Please attach the judgment copy.

[Sajib Nandi]

|REPORTABLE |


IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL) NO.137 OF 2011





SUBHASH POPATLAL DAVE … PETITIONER


VS.



UNION OF INDIA & ANR. … RESPONDENTS


WITH

W.P. (CRL) NOS.35, 138, 142, 220 & 249 OF 2011
AND W.P. (CRL) NOS.11 & 14 OF 2012

WITH

S.L.P. (CRL) NOS.1909 & 1938 OF 2011
AND S.L.P. (CRL) NOS.2442 & 2091-2092 OF 2012



J U D G M E N T


ALTAMAS KABIR, J.

1. These Special Leave Petitions and Writ Petitions are all directed
against orders of preventive detention at the pre-execution stage. During
the course of hearing, it was submitted on behalf of some of the
Petitioners that the decision rendered in Addl. Secretary, Govt. of India
vs. Alka Subhash Gadia [(1992) Supp. (1) SCC 496] that a preventive
detention order could be challenged at the pre-execution stage on the five
grounds enumerated in the judgment, was no longer good law on account of
the subsequent enactment of the Right to Information Act, 2005, hereinafter
referred to as the “R.T.I. Act”, which came into force on 15th June, 2005.
A connected question which was raised was whether the aforesaid decision in
Alka Subhash Gadia’s case (supra) was per incuriam, since it did not have
the occasion to notice subsequent decisions on the same question. Another
question which was raised was whether the five instances indicated in Alka
Subhash Gadia’s case (supra), under which a detention order could be
challenged at the pre-execution stage, was exhaustive or whether they were
only illustrative.

2. Since a decision on the points raised could effectively decide the
matters without going into factual details, it was decided to decide the
said questions as preliminary issues, before going into the matters on
merit.

3. Appearing on behalf of some of the Petitioners, Mr. Mukul Rohatgi,
learned Senior Advocate, urged that the five exceptions laid down in Alka
Subhash Gadia’s case (supra) were not exhaustive, but only illustrative, as
was held by this Court in Deepak Bajaj vs. State of Maharashtra [(2008) 16
SCC 14]. Mr. Rohatgi submitted that it was well settled that the power of
judicial review vested in the High Courts under Article 226 and in this
Court under Article 32 of the Constitution, is part of the basic structure
of the Constitution and it was inconceivable that such power of judicial
review could be restricted by amending the Constitution or by a judicial
pronouncement.

4. Mr. Rohatgi contended that since Article 32 was included in Part III
of the Constitution and was in itself a fundamental right, the exercise of
jurisdiction thereunder by this Court could not be affected and/or
restricted by the decision rendered in Alka Subhash Gadia’s case (supra).
Learned counsel urged that it was also inconceivable that by a judicial
pronouncement, the jurisdiction of this Court to interfere with detention
orders at a pre-execution stage only could be restricted to the five
exceptions mentioned in Alka Subhash Gadia’s case (supra) only, for all
times to come.

5. Tracing the history of the powers exercised by this Court under
Article 32 of the Constitution, Mr. Rohatgi firstly referred to the
decision rendered by this Court in the case of Romesh Thappar vs. State of
Madras [(1950) SCR 594], wherein it was observed that Article 32 provides a
guaranteed remedy for the enforcement of the rights under Part III of the
Constitution and this remedial right has itself been made a fundamental
right by being included in Part III. Mr. Rohatgi then referred to the
decision of this Court in D.A.V. College vs. State of Punjab [(1972) 2 SCC
269], wherein in paragraph 44, this Court observed that it was immaterial
as to whether any fundamental right has been threatened or violated. So
long as a prima facie case of such threat and violation was made out, a
petition under Article 32 has to be entertained.

6. Various other judgments were also referred to by Mr. Rohatgi, of
which it will be worthwhile to refer to the decision of this Court in
Haradhan Saha vs. State of West Bengal [(1975) 3 SCC 198], Olga Tellis &
Ors. vs. Bombay Municipal Corporation [(1985) 3 SCC 545] and K.K. Kochunni
vs. State of Madras [(1959) Supp. (2) SCR 316]. All these judgments have
held that judicial review of administrative action, even when fundamental
rights are threatened, is permitted on grounds of relevance,
reasonableness, necessity, delay, casualness and for infringement of
Articles 14, 19 and 21. In fact, it was in K.K. Kochunni’s case (supra)
that it was observed by the Constitution Bench that the right to enforce a
fundamental right conferred by the Constitution was itself a fundamental
right guaranteed by Article 32 of the Constitution and this Court could not
refuse to entertain a petition under that Article simply because the
Petitioner had/might have any other alternative legal remedy. The said
position was further reiterated by another Constitution Bench in Haradhan
Saha’s case (supra), while dealing with a case involving preventive
detention. It was observed that the essential concept of preventive
detention is that the detention of a person is not to punish him for
something he has done, but to prevent him from doing it again. It was also
observed that there could be no parallel between prosecution in a Court of
law and a detention order under the Act. While one is punitive, the other
is preventive. Also referring to the decision of this Court in Francis
Coralie Mullin vs. W.C. Khambra [(1980) 2 SCC 275], Mr. Rohatgi referred to
the observations made in paragraph 5 of the judgment to the effect that the
role of the Court in cases of preventive detention has to be one of eternal
vigilance as no freedom is higher than personal freedom and no duty higher
than to maintain it unimpaired. Furthermore, the Court’s writ is the
ultimate insurance against illegal detention and a detenu was, therefore,
entitled to question the detention order even at the pre-execution stage,
as was held in Alka Subhash Gadia’s case (supra), on grounds other than
those set out therein.

6. In support of his submission that circumstances had substantially
changed on account of the advent of information technology, Mr. Rohatgi
submitted that this Court had occasion to consider the challenge against
orders of preventive detention on grounds outside those indicated in Alka
Subhash Gadia’s case (supra), wherein this Court had intervened and quashed
the orders of detention on grounds, other than those indicated in Alka
Subhash Gadia’s case (supra).

7. In this connection, Mr. Rohatgi firstly referred to the decision of
this Court in Rajinder Arora vs. Union of India [(2006) 4 SCC 796], wherein
this Court had held that the delay in passing of a detention order, without
any explanation for such delay, was sufficient ground to set aside the
detention order made under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974. Of course, it must be said
that while quashing the detention order, Their Lordships related the facts
of the said case with grounds 3 and 4 of the decision in Alka Subhash
Gadia’s case (supra). Reference was thereafter made by Mr. Rohatgi to a
Three-Judge Bench decision of this Court, in which two of us (Altamas Kabir
and J. Chelameswar, JJ) were parties, in the case of Yumman Ongbi Lembi
Leima vs. State of Manipur [(2012) 2 SCC 176], in which the detention order
was quashed, inter alia, on the ground that there was no proximate and live
link between the activities of the detenu and the detention order. In the
said matter, facts relating to the arrest of the detenu and subsequent
release on bail more than 12 years before the offence in respect of which
detention orders had been passed, were held to be irrelevant and/or
improper for justification of an order of detention. Mr. Rohatgi pointed
out that it was also held therein that mere apprehension that the detenu
was likely to be released on bail, whereafter he would indulge in further
prejudicial activities, was not sufficient to justify the detention order
in the absence of any other ground.

8. The next decision referred to by Mr. Rohatgi was delivered by a Bench
of three Judges of this Court in Rekha vs. State of Tamil Nadu [(2011) 5
SCC 244], wherein while disagreeing with some of the observations made in
Haradhan Saha’s case (supra), the Hon’ble Judges went on to hold that
though in Haradhan Saha’s case it had been held that the authorities could
take recourse to both criminal proceedings and also preventive detention,
it did not mean that such would be the law in all cases, even though in the
view of the Court the criminal proceedings were sufficient to deal with the
offences.

9. Having completed his submissions with regard to the exhaustive and/or
illustrative nature of the five exceptions set out in Alka Subhash Gadia’s
case (supra), Mr. Rohatgi then turned his focus on the provisions of the
R.T.I. Act under which, according to learned counsel, a detenu was entitled
to receive a copy of the grounds of detention even though he had not been
actually apprehended and detained pursuant to such detention order. Mr.
Rohatgi submitted that in the cases of Choith Nanikram Harchandai and
Suresh Hotwani, the grounds of detention had been provided to the detenu
under the provisions of Section 3 of the aforesaid Act. Learned counsel
submitted that the only prohibition to the grant of information has been
set out in Section 8(h) and Section 24 of the said Act. Section 8(h) of
the R.T.I. Act prohibits the disclosure of information which could impede
the process of investigation or the apprehension and prosecution of
offenders. Mr. Rohatgi submitted that it is obvious that the said
provisions were confined to persons who are offenders and not detenus under
a preventive detention law, who could not under the detention order be said
to be an offender. Mr. Rohatgi urged that the only other restriction was
under Section 24, wherein certain security and intelligence agencies of the
Government have been exempted from the provisions of the Act. Learned
counsel urged that under the first proviso to Section 24, information
relating to human rights cannot be denied to the person seeking information
since human rights had been defined in Section 2(e) of the Protection of
Human Rights Act as being rights relating to life, liberty, equality and
dignity, guaranteed by the Constitution. Mr. Rohatgi contended that the
illegal detention would also amount to violation of human rights.

10. Mr. Rohatgi submitted that the Right to Information Act was not in
existence, when decisions were rendered by this Court in Alka Subhash
Gadia’s case (supra) as also in the case of Sayed Taher Bawamiya vs. Joint
Secretary, Government of India [(2000) 8 SCC 630] and in the case of Union
of India vs. Atam Prakash & Anr. [2009) 1 SCC 585], in which it was held
that the grounds of challenge to a detention order at the pre-execution
stage could only be confined to the five exceptions set out in Alka Subhash
Gadia’s case (supra).

11. Mr. Rohatgi submitted that having regard to the various circumstances
which this Court had no occasion to consider in Alka Subhash Gadia’s case
(supra), it cannot be accepted that the challenge to preventive detention
order at the pre-execution stage could not be made on any other ground
other than the five exceptions mentioned in Alka Subhash Gadia’s case
(supra). Mr. Rohatgi urged that besides the above, the right of a detenu
to information relating to the grounds of detention under Section 3 of the
Right to Information Act, 2005, was also a circumstance which could not be
taken into consideration by the Hon’ble Judges while deciding Alka Subhash
Gadia’s case (supra). Accordingly, in the changed circumstances, it cannot
be held that apart from the five exceptions mentioned in Alka Subhash
Gadia’s case (supra), a detenu could not be denied the grounds of detention
on the basis of which he was to be detained at the pre-execution stage.

12. In addition to the submissions made by Mr. Rohatgi, submissions were
also advanced by Mr. Ravindra Keshavrao Adsure, Advocate, appearing for
some of the Petitioners in these matters. In fact, Mr. Adsure is appearing
in the lead matter, namely, Writ Petition (Crl.) No.137 of 2011, filed by
Subhash Popatlal Dave, in which the detention order made against one Haresh
Kalyandas Bhavsar on 18th August, 1997, was challenged. Mr. Adsure
attempted to convince this Court that the decisions cited in Alka Subhash
Gadia’s case (supra) and Sayed Taher Bawamiya’s case (supra), were per
incuriam, since the Hon’ble Judges did not have the opportunity to consider
the effects of the enactment of the Right to Information Act in 2005. Mr.
Adsure made special mention of the Writ Petitions filed by Choith Nanikram
Harchandai (Writ Petition (Crl) No.88 of 2010) and Suresh Hotwani & Anr.
(Writ Petition (Crl) No.35 of 2011), wherein the detention orders and
grounds had been provided under the R.T.I. Act, 2005, before the same were
executed. Following the same line of arguments advanced by Mr. Rohatgi, Mr.
Adsure also laid stress on the observations made in Alka Subhash Gadia’s
case (supra) (paragraph 12) where other than the five exceptions ultimately
culled out in paragraph 30 of the judgment, various other situations
entertaining a petition for quashing of detention order have also been
indicated. Mr. Adsure also referred to the decisions of this Court in (i)
Alpesh Navinchandra Shah vs. State of Maharashtra [(2007) 2 SCC 777]; (ii)
State of Maharashtra vs. Bhaurao Punjabrao Gawande [(2008) 3 SCC 613]; and
(iii) Rekha vs. State of Tamil Nadu [(2011) 5 SCC 244], wherein the
detention orders were set aside on the ground that the purpose for issuance
of a detention order is to prevent the detenu from continuing his
prejudicial activities for a period of one year, but not to punish him for
something done in the remote past. Mr. Adsure contended that the very
concept of preventive detention is to prevent a person from indulging in
activities which were prejudicial to the State and society. However, there
would have to be a nexus between the detention order and the alleged
offence in respect whereof he was to be detained and in the absence of a
live link between the two, the detention order could not be defended.

13. On the same lines, Mr. Adsure referred to the decision in Rekha’s
case (supra), wherein this Court had held that when the ordinary criminal
law of the land is able to deal with a situation, then recourse to
preventive detention law will be illegal. Mr. Adsure urged that the orders
of detention which violated the aforesaid principles could not, therefore,
be sustained and could also be challenged at the pre-execution stage.

14. Appearing on behalf of the Union of India, learned Additional
Solicitor General, Mr. P.P. Malhotra, contended in response to the first
point raised, that the grounds for intervention at the pre-detention stage,
as indicated in Alka Subhash Gadia’s case (supra), are exhaustive and not
illustrative, and had been so held in subsequent decisions of this Court,
and in particular, the decision of a Three-Judge Bench in the case of Sayed
Taher Bawamiya (supra). The learned ASG contended that in the said case it
had also been sought to be argued that the exceptions in Alka Subhash
Gadia’s case (supra) were not exhaustive, but merely illustrative, but the
Three-Judge Bench had rejected such contention upon holding that in Alka
Subhash Gadia’s case (supra), it is only in the five types of instances
indicated, that the Courts may exercise its discretion and jurisdiction
under Article 226 and 32 of the Constitution at the pre-execution stage.
The learned ASG laid stress on the observations made in paragraph 7 of the
judgment wherein the learned Judges had observed that in Alka Subhash
Gadia’s case (supra) it was only in the five types of instances that the
Courts could exercise its discretion and jurisdiction at the pre-execution
stage. Reference was also made to another Three-Judge Bench decision of
this Court in Naresh Kumar Goyal vs. Union of India [(2005) 8 SCC 276],
wherein it was, inter alia, observed that 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 the abandonment of the said power or to their denial to the
proposed detenu, but prevents their abuse and the perversion of the law in
question.

15. The learned ASG also referred to the decision of this Court in Union
of India vs. Parasmal Rampuria [(1998) 8 SCC 402], wherein this Court
directed the detenu to surrender and thereafter to make a representation
challenging the detention order, which could be examined on merits. The
entire focus of the submissions made by the learned ASG was centered around
the decision in Sayed Taher Bawamiya’s case (supra) and he tried to make a
distinction between the same and the decision in Deepak Bajaj’s case
(supra), which the learned ASG pointed out, was a decision of two Judges of
this Court. Even with regard to the decision in Rajinder Arora’s case
(supra), the learned ASG pointed out that the decision was based on ground
nos.3 and 4 of the decision in Alka Subhash Gadia’s case (supra).

16. As to the decision in Rekha’s case (supra), the learned ASG pointed
out that this was not a case of pre-detention, but a criminal appeal in
which the orders of detention had been challenged. The learned ASG
submitted that since the challenge was not at the pre-execution stage, the
judgment in Rekha’s case was not relevant in deciding the issue involved in
this case.

17. As to the other decisions cited on behalf of the Petitioners, such as
in Romesh Thappar’s case (supra) and in K.K. Kochunni’s case (supra), the
learned ASG submitted that the said decisions relate to the width and scope
of Articles 19 and 21 of the Constitution and there was no challenge
therein that the decision in Alka Subhash Gadia’s case (supra) was
erroneous.

18. On the second point relating to applicability of the R.T.I. Act,
2005, the learned ASG submitted that while the Preamble to the Act
stipulates that it had been passed to promote transparency and
accountability in the working of every public authority, certain
restrictions had been imposed on divulging certain information as indicated
in Section 8 of the Act. Referring to clause (a) of Section 8 of the
aforesaid Act, the learned ASG submitted that it had been stipulated that
notwithstanding anything contained in the Act, there would be no obligation
to any citizen to give information, disclosure of which would prejudicially
affect the economic interest of the State, relations with foreign States or
such information which would impede the process of investigation or the
apprehension or prosecution of offenders. The learned ASG also pointed out
that there was no obligation to provide information which relates to
personal information, the disclosure of which has no relationship to any
public activity or interest. While referring to Section 24 of the Act, the
learned ASG submitted that it guaranteed exemption to the agencies
mentioned in the 2nd Schedule and the Central Economic Intelligence Bureau
was one of them. Therefore, if a proposed detenu or his representative
made an application for disclosure of grounds of detention, he would not be
entitled to the same on the aforesaid grounds.

19. The learned ASG submitted that the decision rendered by the Bombay
High Court in dismissing the Writ Petitions filed by Suresh Hotwani and
Nitesh Ashok Sadarangani did not require any interference by this Court.
The learned ASG lastly submitted that the provisions in the Constitution
for detention are provided in Article 22 which sets out the provisions
regarding protection against arrest and detention in certain cases. The
learned ASG laid special stress on clause (b) of sub-clause (3), which
indicates that nothing in clauses (1) and (2) would apply to any person who
is arrested or detained under any law providing for preventive detention.
Regarding sub-clause (5) of the aforesaid Article, the learned ASG
submitted that when any person is detained in pursuance of an order made
under any law providing for preventive detention, the authority making the
order is under an obligation to communicate to such person the grounds on
which the order has been made, as quickly as possible, in order to afford
him the earliest opportunity of making a representation against such order.
The learned ASG submitted that detention or arrest was a pre-condition for
service of the grounds of detention and it is only after such detention or
arrest that a detenu could ask for a copy of the grounds of detention. The
learned ASG submitted that the constitutional provisions would have an
overriding effect over the Right to Information Act, and, accordingly, the
submissions made both by Mr. Rohtagi and Mr. Adsure with regard to the
right of a detenu to ask for grounds of detention under the R.T.I. Act was
without any substance and was liable to be rejected. The learned ASG
submitted that both the grounds raised on behalf of the Petitioners, as
preliminary grounds, were not valid and were liable to be rejected.

20. On the other question as to whether the R.T.I. Act applies in cases
of preventive detention, we are unable to accept the submissions made by
Mr. Rohatgi. Article 22 of the Constitution provides for protection against
arrest and detention in certain cases. Clauses (1) and (2) of Article 22
set out the manner in which a person arrested is to be dealt with and
clause (1) makes it clear that no person who is arrested is to be detained
in custody without being informed, as soon as may be, of the grounds for
such arrest. Clause (2) provides that such a person who is arrested and
detained in custody has to be produced before a Magistrate within a period
of 24 hours of such arrest. However, an exception is made by clause (3),
which provides that nothing in clauses (1) and (2) shall apply, amongst
others, to any person who is arrested or detained under any law providing
for preventive detention. Clause (4) thereafter sets out that no law
providing for preventive detention shall authorize such detention for more
than three months without following the procedure subsequently set out.
What is relevant for our consideration while deciding the above mentioned
question is clause (5) of Article 22 which is extracted hereinbelow :-
“(5). 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.”


21. It may immediately be noticed from the opening words of clause (5)
that the grounds on which the person is detained is to be communicated to
him when the person has actually been detained. (emphasis supplied) If one
were to read clauses (1) to (6) of Article 22 as a whole, it is more than
obvious that the scheme envisaged therein provides for the protection of a
person arrested in connection with an offence by providing for his
production before the Magistrate within 24 hours of his arrest and also to
avail the services of a lawyer, but an exception has been carved out in
relation to detention effected under preventive detention laws. A detenu is
not required to be treated in the same manner as a person arrested in
connection with the commission of an alleged offence. On the other hand,
preventive detention laws provide for the detention of a person with the
intention of preventing him from committing similar offences in the future,
at least for a period of one year. Section 3 of the R.T.I. Act, 2005,
provides that subject to the provisions of the Act, all citizens would have
the right to information. Section 8, however, makes an exemption from
disclosure of information. While setting out the instances in which there
would be no obligation to give any citizen information in the situations
enumerated in Sub-Section (1), Sub-Section (2) provides that
notwithstanding anything in the Official Secrets Act, 1923, nor any of the
exemptions permissible in accordance with Sub-Section (1), a public
authority may allow access to information, if public interest in disclosure
outweighs the harm to the protected interests. There are two instances,
which one can think of among the exemptions identified in Sub-Section (1),
of which one is the exemption indicated in clause (a) of Sub-Section (1),
which reads as follows :-
“8(1). Notwithstanding anything contained in this Act, there shall be
no obligation to give any citizen,—
(a) information, disclosure of which would prejudicially affect the
sovereignty and integrity of India, the security, strategic,
scientific or economic interests of the State, relation with
foreign State or lead to incitement of an offence;


(b) to (i) xxx xxx xxx


j) information which relates to personal information the disclosure
of which has no relationship to any public activity or interest,
or which would cause unwarranted invasion of the privacy of the
individual, unless the Central Public Information Officer or the
State Public Information Officer or the appellate authority, as
the case may be, is satisfied that the larger public interest
justifies the disclosure of such information:


Provided that the information which cannot be denied to the
Parliament or a State Legislature shall not be denied to any person.”


22. Even under Sub-Section (1) of Section 8 of the above Act, the
legislature made an exception to the disclosure of information which could
be contrary to the interests of the nation, subject to the provision that
such information may also be allowed to be accessed in the public interest,
which overweighed the personal interests of the citizen. Not much discourse
is required with regard to the primacy of the provisions of the
Constitution, vis-à-vis the enactments of the legislature. It is also not
necessary to emphasise the fact that the provisions of the Constitution
will prevail over any enactment of the legislature, which itself is a
creature of the Constitution. Since clause (5) of Article 22 provides that
the grounds for detention are to be served on a detenu after his detention,
the provisions of Section 3 of the R.T.I. Act, 2005, cannot be applied to
cases relating to preventive detention at the pre-execution stage. In
other words, Section 3 of the R.T.I. Act has to give way to the provisions
of Clause (5) of Article 22 of the Constitution. Even the provisions
relating to production of an arrested or detained person, contained in
clauses (1) and (2) of Article 22 of the Constitution, have in their
application been excluded in respect of a person detained under any
preventive detention law.

23. We, therefore, agree with the learned ASG, Mr. P.P. Malhotra, that
notwithstanding the provisions of the R.T.I. Act, 2005, the State is not
under any obligation to provide the grounds of detention to a detenu prior
to his arrest and detention, notwithstanding the fact that in the cases of
Choith Nanikram Harchandai and Suresh Hotwani & Anr., referred to
hereinabove, the grounds of detention had been provided to the detenu under
the R.T.I. Act, 2005, at the pre-execution stage. The procedure followed
under the R.T.I. Act, in respect of the said writ petitions cannot and
should not be treated as a precedent in regard to Mr. Rohatgi’s contention
that under the R.T.I. Act, 2005, a detenu was entitled, in assertion of his
human rights, to receive the grounds under which he was to be detained,
even before his detention, at the pre-execution stage.

24. As to the second point urged by Mr. Rohtagi as to whether the five
exceptions mentioned in Alka Subhash Gadia’s case (supra) regarding the
right to challenge an order of detention at the pre-execution stage, were
exhaustive or not, we are of the view that the matter requires
consideration. The decision in Alka Subhash Gadia’s case (supra), appears
to suggest several things at the same time. The Three-Judge Bench, while
considering the challenge to the detention order passed against the detenu,
at the pre-execution stage, and upholding the contention that such
challenge was maintainable, also sought to limit the scope of the
circumstances in which such challenge could be made. However, before
arriving at their final conclusion on the said point, the learned Judges
also considered the provisions of Articles 19 to 22 relating to fundamental
freedoms conferred on citizens and the proposition that the fundamental
rights under Chapter III of the Constitution have to be read as a part of
an integrated scheme. Their Lordships emphasized that they were not
mutually exclusive, but operated, and were subject to each other. Their
Lordships held that it was not enough that the detention order must satisfy
the tests of all the said rights so far as they were applicable to
individual cases. Their Lordships also emphasized in particular that it was
well-settled that 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 of the Constitution
and the nature of constitutional rights thereunder. Their Lordships were
of the view that read together the Articles indicate that the Constitution
permits both punitive and preventive detention, provided it is according to
procedure established by law made for the purpose and if both the law and
the procedure laid down by it are valid. Going on to consider the various
decisions rendered by this Court in this regard, Their Lordships in
paragraph 5 observed as follows :-

“5. The neat question of law that falls for consideration is whether
the detenu or anyone on his behalf is entitled to challenge the
detention order without the detenu submitting or surrendering to it.
As a corollary to this question, the incidental question that has to
be answered is whether the detenu or the petitioner on his behalf, as
the case may be, is entitled to the detention order and the grounds on
which the detention order is made before the detenu submits to the
order.”

25. It is in the aforesaid background that Their Lordships while
examining the various decisions rendered on the subject, summed up the
discussion in paragraph 30 of the judgment, wherein Their Lordships again
reiterated that neither the Constitution, including the provisions of
Article 22 thereof, nor the Act in question, places any restriction on the
powers of the High Court and this Court to review judicially the order of
detention. Their Lordships observed that the powers under Article 226 and
32 are wide, and are untrammelled by any external restrictions, and can
reach any executive action resulting in civil or criminal consequences.
However, the said observations were, thereafter, somewhat whittled down by
the subsequent observation that the Courts have over the years evolved
certain self-restraints in exercising these powers. Such self-imposed
restraints were not confined to the review of the orders passed under
detention law only, but they extended to orders passed and decisions made
under all laws. It was also observed that in pursuance of such self-evolved
judicial policy and in conformity with the self-imposed internal
restrictions that the Courts insist that the aggrieved person should 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 and that such
jurisdiction by its very nature has to be used sparingly and in
circumstances where no other efficacious remedy is available. However,
having held as above, Their Lordships also observed that all the self-
imposed restrictions in respect of detention orders would have to be
respected as it would otherwise frustrate the very purpose for which such
detention orders are passed for a limited purpose. Consequently, inspite of
upholding the jurisdiction of the Court to interfere with such orders even
at the pre-execution stage, Their Lordships went on to observe as follows :-



“The courts have the necessary power and they have used it in proper
cases as has been pointed out above, although such cases have been few
and the grounds on which the courts have interfered with them at the
pre-execution stage are necessarily very limited in scope and number,
viz., where the courts are prima facie satisfied (i) that the impugned
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 the abandonment of the said power or
to their denial to the proposed detenu, but prevents their abuse and
the perversion of the law in question.”


26. Nowhere has it been indicated that challenge to the detention order
at the pre-execution stage, can be made mainly on the aforesaid exceptions
referred to hereinabove. By prefacing the five exceptions in which the
Courts could interfere with an order of detention at the pre-execution
stage, with the expression “viz”, Their Lordships possibly never intended
that the said five examples were to be exclusive. In common usage or
parlance the expression “viz” means “in other words”. There is no aura of
finality attached to the said expression. The use of the expression
suggests that the five examples were intended to be exemplar and not
exclusive. On the other hand, the Hon’ble Judges clearly indicated that
the refusal to interfere on any other ground did not amount to the
abandonment of said power. It is only in Sayed Taher Bawamiya’s case
(supra) that another Three- Judge Bench considered the ratio of the
decision of this Court in Alka Subhash Gadia’s case (supra) and observed
that the Courts have the power in appropriate cases to interfere with the
detention orders at the pre-execution stage, but that the scope of
interference was very limited. It was in such context that the Hon’ble
Judges observed that while the detention orders could be challenged at the
pre-execution stage, that such challenge could be made only after being
prima facie satisfied that the five exceptions indicated in Alka Subhash
Gadia’s case (supra) had been fulfilled.

27. Their Lordships in paragraph 7 of the judgment held that the case
before them did not fall under any of the five exceptions to enable the
Court to interfere. Their Lordships also rejected the contention that the
exceptions were not exhaustive and that the decision in Alka Subhash
Gadia’s case (supra) indicated that it is only in the five types of
instances indicated in the judgment in Alka Subhash Gadia’s case (supra)
that the Courts may exercise its discretionary jurisdiction under Articles
226 and 32 of the Constitution at the pre-execution stage.

28. With due respect to the Hon’ble Judges, we have not been able to read
into the judgment in Alka Subhash Gadia’s case (supra) any intention on the
part of the Hon’ble Judges, who rendered the decision in that case, that
challenge at the pre-execution stage would have to be confined to the five
exceptions only and not in any other case. Both the State and the Hon’ble
Judges relied on the decision in Sayed Taher Bawamiya’s case (supra). As
submitted by Mr. Rohatgi, to accept that it was the intention of the
Hon’ble Judges in Alka Subhash Gadia’s case (supra) to confine the
challenge to a detention at the pre-execution stage, only on the five
exceptions mentioned therein, would amount to imposing restrictions on the
powers of judicial review vested in the High Courts and the Supreme Court
under Articles 226 and 32 of the Constitution. The exercise of powers
vested in the superior Courts in judicially reviewing executive decisions
and orders cannot be subjected to any restrictions by an order of the Court
of law. Such powers are untrammelled and vested in the superior Courts to
protect all citizens and even non-citizens, under the Constitution, and may
require further examination.

29. In such circumstances, while rejecting Mr. Rohatgi’s contention
regarding the right of a detenu to be provided with the grounds of
detention prior to his arrest, we are of the view that the right of a
detenu to challenge his detention at the pre-execution stage on grounds
other than those set out in paragraph 30 of the judgment in Alka Subhash
Gadia’s case (supra), requires further examination. There are various
pronouncements of the law by this Court, wherein detention orders have been
struck down, even without the apprehension of the detenu, on the ground of
absence of any live link between the incident for which the detenu was
being sought to be detained and the detention order and also on grounds of
staleness. These are issues which were not before the Hon’ble Judges
deciding Alka Subhash Gadia’s case (supra). Law is never static but
dynamic, and to hold otherwise, would prevent the growth of law, especially
in matters involving the right of freedom guaranteed to a citizen under
Article 19 of the Constitution, which is sought to be taken away by orders
of preventive detention, where a citizen may be held and detained not to
punish him for any offence, but to prevent him from committing such
offence. As we have often repeated, the most precious right of a citizen
is his right to freedom and if the same is to be interfered with, albeit in
the public interest, such powers have to be exercised with extra caution
and not as an alternative to the ordinary laws of the land.

30. In the light of the above, let the various Special Leave Petitions
and the Writ Petitions be listed for final hearing and disposal on 7th
August, 2012 at 3.00 p.m. This Bench be reconstituted on the said date, for
the aforesaid purpose.


………………………………………………………J.
(ALTAMAS KABIR)



………………………………………………………J.
(GYAN SUDHA MISRA)



………………………………………………………J.
(J. CHELAMESWAR)
New Delhi
Dated: July 10, 2012.

[ambrish.p]

Decision as attachment.

regards