T.N. Singh, J.
1. Two questions of constitutional import, involving interpretation of Articles 22 and 141 have surfaced in these two habeas corpus applications preferred from Jail. Indeed, another question of equal importance, concerning interpretation of Section 12(1) of the National Security Act, 1980 (for short, 'the Act'), has also fallen for our determination in these two cases. We, therefore, heard these two cases analogously and we propose to deal with the three common questions while disposing of the cases by this common judgment.
2. First, the skeletal facts necessary to dispose of the controversy which albeit is limited admittedly to the questions of law just alluded. Petitioner Bharat has been detained on the strength of an order passed under Section 3 of the Act on 18-9-84 (Annexure R/l) by the District Magistrate, Gwalior, for interdicting his activities which, in his opinion, were prejudicial to the maintenance of public order. The order was bottomed on two grounds and the 'Grounds' bore the date 22-9-84. Petitioner Daulat Singh suffers detention on the strength of a similar order passed by the same detaining authority on 29-3-84 (Annexure R/l) and indeed, for achieving the same objective, namely, maintenance of public order. The order, in this case, was also passed on two grounds. But, in neither case, it is necessary to refer to the contents of the 'Grounds' inasmuch as the challenge, as alluded, is founded on the breach of the Constitutional mandate of Article 22(5). Suffice it to say that in either case, the grounds narrated certain antisocial and criminal activities of the detenus, such as intimidation, extortion and also terrorising people by throwing hand-bomb.
3. The cases of the two detenus were referred separately for the opinion of the Advisory Board and the detenus were also produced before the Board. The case of petitioner Bharat was considered by the Board on 20-10-84, on which date, the Board submitted its 'Report' and 'opinion', holding that there was sufficient cause for detention of Bharat under the Act. Petitioner Daulat Singh's case was considered by the same Board on 8-5-85, on which date, a similar 'Report' and 'opinion' to the same effect was tendered by the Board. Thereafter, the State Government confirmed the order of detention in both cases and continued their detentions for 12 months, the maximum period envisaged under the Act. On 22-4-85, on petitions received from Jail in both cases, this Court directed notices to be issued to the State and on the prayer of the Deputy Government Advocate, allowed fifteen days' time to State to file returns in both cases. The same have since been filed.
4. We have heard Shri Suresh Gupta, who appeared on behalf of the petitioners in the two cases. On being directed by this Court, the petitioners were also produced from Jail and we heard them as well. On behalf of the State, the Government Advocate Shri M. C. Jain, produced relevant records and also made his submissions.
5. The accepted position in both cases is that no written 'representation' was filed by the petitioners either before the State Government or before the Advisory Board. But, Shri Gupta, relying on a decision of this Bench, rendered on 26-6-85, in Misc. Petn. No. 164/85 (Anoop Kumar v. District Magistrate Gwalior submitted that the cases of both the petitioners are covered by the said decision and they are both entitled to be set at liberty forthwith. Because, counsel contended, as in the case of Anoop Kumar (Supra), in the instant cases as well, the Constitutional mandates of Articles 14 and 22 have been breached inasmuch as on behalf of the State, in one case, Shri K.B. Sharma, A.P.P., Gwalior, and in the other case, Shri R.K. Choudhary, A.P.P.. Gwalior. appeared before the Advisory Board and they were heard by the Board, while the detenus were not given similar opportunity of being represented by any ''legal practitioner' or 'legal adviser'. Each was heard alone. Our attention was also drawn to the relevant records to support the submission that the State Government, while passing the order under Section 12(1) of the Act to 'confirm' the detention order in either case, acted mechanically and continued detention of the petitioners for the maximum period of twelve months envisaged under the Act.
6. Shri Jain, on the other hand, made submissions mainly to counter petitioners' contention, based on Anoop Kumar, and endeavoured strenuously to persuade us to take a different view in these two cases contending that the decision in A. K. Roy's case : 1982CriLJ340 . relied on by this Court in Anoop Kumar (Supra), requires further scrutiny. Stale counsel submitted that what was laid down by the Supreme Court in A. K. Roy's case (supra) at para 94 of the report was not 'law' and ought to be read as mere' 'observations' or obiter dicta. Counsel also submitted that 'A.P.P.' (Assistant Public Prosecutor)' being a Police Officer in the employment of the Slate, could not be considered either as a ''legal advisor' or 'legal practitioner'. In any case, Shri Jain submitted, appearance before the Board by M/s. Sharma and Choudhary was not unauthorised in that Section 11(1) of the Act contemplated calling for such 'information' from the Government as the Board deemed necessary and also contemplated such information being made available by the Government to the Board. Therefore, Shri Jain submitted, the presence of any representative of the Government before the Board was not a taboo and in the instant case, we should lake the view that M/s. Sharma and Choudhary appeared before the Board only to submit necessary 'information'. He also relied on the decision in Phillippa Anne Duke : 1982CriLJ1389 and a decision of the Delhi High Court in the case of Deepak Kumar v. Union of India 1985 Cri LJ NOC 96.
7. Even though it was slated in A. K. Roy 1982 Cri LJ 340 SC Supra that preventive detention was not basically impermissible under the Constitution because the State possessed the required legislative competence to enact laws providing for preventive detention the position in law is by now well established that Clauses (4) to (7) of Article 22 provided express limitations on the exercise of the power of the State to make 'preventive detention' by positing therein necessary safeguards against abuse of the power. It also appears crystal-clear that the most effective safeguard provided against abuse of the power is the right granted to a detenu under Clause (5) to make a 'representation' against an order made under any law providing for preventive detention. There cannot be any doubt, indeed, that the detenu has a right not only to make an effective 'representation', but to have the representation considered fairly, justly and with utmost expedition and that consideration of the representation must proceed on two levels at Government level (by the State Government and/or Central Government) and at the level of the Advisory Board. Indeed, this position has now been firmly established and judicially crystallised by a long line of decisions of the apex court which has also held that this Court (as also the Supreme Court) has a Constitutional obligation to zealously guard against breach of the Constitutional sefeguard enjoined by Article 22(5): see Rattan Singh 1982 Cri LJ 146 (SC) and Satpa 1981 Cri LJ1867 (SC (infra) and A. K. Roy 1982 Cri LJ 340 (supra) et al. That it is the duty of the Court to ensure that preventive detention does not partake the character of punitive detention is also underwritten by A. K. Roy at para 66 of the report in A. K. Roy, their Lordships took care to observe that 'wanton abuse' of the provision of Section 3(2) of the Act must be eschewed and hinted the possibility of such a situation occurring because of the expression 'maintenance of supplies essential to the community', which the Section uses, was too vague and uncertain and was, therefore, capable of expansion in a cavalier fashion. 'To allow personal liberty of the people to be taken away by the application of that clause would be a flagrant violation of the fairness and justness of the procedure which is implicit in the provisions of Article 21', so it was held and remedy for the 'mischief was also suggested; the defect could be removed by specifying by means of 'law, order or notification', the essential supplies and services, so it was indicated.
8. In Anoop Kumar (supra), in granting relief to the petitioner, this Bench extracted and relied on the following observations, appearing at para 94 of the report in A. K. Roy's case 1982 Cri LJ 340 (supra):
The reasons behind the provisions contained in Article 22(3)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. In any case, that is not what the constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the Govt. to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear that if the detaining authority or the Govt. takes the aid of legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner.
9. We have no doubt, as held in A. K. Roy 1982 Cri LJ 340 (SC) (Supra) as well, that it is open to the Advisory Board to devise its own procedure, but the same, as held by their Lordships, must not transgress 'the constraint of the Constitution and the statute'. The Board must, therefore, in our opinion, follow a fair and just procedure and conform to the judicial mandate inscribed in Maneka Gandhi's Case : 2SCR621 . It is not open to the Board to act in breach of any of the Constitutional judicial mandates and a concurrent duty, in our opinion, rests on this Court in terms of Article 39A to ensure that the Board so functions and that the detenu gets 'justice' at Board's forum 'on a basis of equal opportunity'. For this view, there exists high and ample authority. See M. H. Hoskot : 1978CriLJ1678 Sheela Barse : 1983CriLJ642 Ranjan Dwevedi AIR 1983 SC 424: (1983Cri LJ 1052). Therefore, irrespective of the question as to whether the 'observations' aforequoted was 'law declared' within the meaning of Article 141, the position in each case can be adjudged by this Court dehors other considerations and it is open to this Court to see if the proceedings before the Board tantamounted in any respect to a breach of Articles 14, 21 and 22 and indeed, also of Article 39A.
10. Breach of Article 14, in our opinion, would be patent in a case in which the Board treats the detenu and the detaining authority unequally. It would be a case of hostile discrimination if the Board allows the detaining authority to be represented by a legally qualified person and does not allow the same facility to the detenu. We have also no hesitation to hold that it would be a clear breach of Article 22(5) in such a case as the detenu would be denied reasonable opportunity of making an effective 'representation'. More so in a case where a detenu, for any reason, failed to make a 'written representation'. Because, as held in A. K. Roy 1982 Cri LJ 340 (SC) (supra), law does not deny the detenu the right to consult a 'legal practitioner' in preparing his 'written representation' though he cannot claim, as of right, to be aided or assisted in the hearing before the Board, obviously in view of the embargo envisaged under Section 11(4). Indeed, in such a case, there would be duty on the Board to question the detenu why a written representation was not filed by him and if he would like to file such a representation for the consideration of the Board as he was evidently suffering the constraint of detention while Section 10 gives him the right to make a 'written representation' for the consideration of the Board. Indeed, the requirement of 'reasonable procedure' envisaged in Maneka Gandhi : 2SCR621 (supra) mandated such a course. According to us, the Board is also obligated to ask him, in a case where the detaining authority is represented by a legally qualified person, if he would also like to avail the same or similar facility. Such a course would not only satisfy the requirement of 'reasonable procedure' but insulate the Board against possible breach of Article 14. The Board is bound to refuse the detaining authority or the Government to be represented before it by a legal practitioner unless it allowed the detenu to be similarly represented. In A. K. Roy (supra) at para 95 of the report, it was held that when so demanded, the Advisory Board ought to extend to the detenu the facility of being aided and assisted by a friend in proceedings before it because 'every person whose interests are adversely affected as a result of the proceedings, which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend.' Applying A. K. Roy, continued detention of the petitioner in Abdul Zabbar : 1983CriLJ853 was quashed as the proceeding before the Board was held vitiated on Board's refusing petitioner's request for representation before it by a 'friend'. In our view, the constitutional requirement of reasonable opportunity being provided to the detenu for making 'effective representation before the Board' also mandates such a course because Article 22(5) speak merely of 'representation' which would include an oral representation and the right to make an effective oral representation and a 'friend's' assistance for that may be required by the detenu.
11. We have no doubt that the provision of Section 11(1), on which Shri Jain relied, does not detract from what their Lordships observed in A. K. Roy's case 1982 Cri LJ 340(SC) (supra). The scope and purport of Section 11(1) is entirely different. It does not purport to confer any right on any person including the Government or the detaining authority to be heard by the Advisory Board in proceedings before it. It merely authorises the Board to call from the detaining authority or the Government or from any person an 'information' which it may deem necessary for the purpose of discharging fairly and justly its Constitutional obligation enjoined under Clause (4) of Article 22 in the matter of submitting its 'report' and 'opinion' as to whether there existed 'sufficient cause' for the detention which it was required to review. It cannot be gainsaid that the Board has a solemn duty to discharge in tendering its 'opinion' inasmuch as detention beyond the period of three months is constitutionally barred under Clause (4) in the absence of Board's affirmative opinion accepting the position that there existed 'sufficient cause' for the detention. In terms of Section 11(1), the Board is, however, authorised merely to call for 'any information' for its own use and satisfaction for a proper disposal of the matter before it. It is true that the Board is also authorised to hear 'any person' from whom any 'information' is called. But, it is also very clear that such a person cannot be one who represents the detaining authority or the Government if such person does not appear in relation to any 'information' called by the Board. Indeed, even if such a person 'desires to be heard', he can be heard by the Board only in a case where he has furnished 'any information' to the Board on the same being called from him. We do not read anything in the language of Section 11(1) to suggest any right being conferred on the detaining authority or the Government to appear before the Board through 'any person' for the purpose merely to support the detention order without being required to furnish any information and without furnishing the information called from him. In the instant case, there is no doubt that aid of Section 11(1) cannot be invoked by the State or the detaining authority to counter the breach of the Constitutional provisions. Because, the A.P. Ps. (M/s. Sharma and Choudhary) did not appear before the Board in relation to any 'information' called from the Government. This fact appears clear from the 'reports' of the Board in both cases. There is no doubt that they appeared before the Board merely to justify the detention orders and they were so heard as appears clear from the reports.
12. We also see no force in Shri Jain's contention that appearance before the Board by M/s. Sharma and Choudhary did not vitiate Board's proceedings because the A.P. Ps. were Police Officers or Government servants and they were not 'legal practitioners'. According to us, their character as such did not bring them in the category of 'any person' of Section 11(1) and did not also, in our opinion, strip them of their acquired legal knowledge or capability to plead the case of the State before the Advisory Board because they were admittedly legally qualified persons though not 'legal practitioners' in technical sense, being not in profession but in employment. Indeed, in Anoop Kumar (supra), this Bench took the view that the A.P. P. filled the role of a 'Legal Advisor' because he was a legally qualified person and was conversant with law as he was prosecuting offenders in criminal courts, even though he could not be considered 'Legal Practitioner'.
13. The decision in Phillippa's case 1982 Cri LJ 1389 (SC)(supra), relied on by Mr. Jain, in our openion, has little bearing on the issue agitated in the instant cases. What the Court held in that case was that the detenu having made no demand for representation before the Board by friend, it was not for the Board to offer 'friendly' representation to the detenu. Merely because the Board did not provide the detenu 'legal representation' and the detenu was heard personally by the Board without such representation, the procedure adopted by the Board was not illegal and the detention order was not vitiated. In that case, unlike the cases in hand, the grievance of Article 14 being breached by treating State preferentially (by allowing it 'legal representation1) did not crop up. We also do not read anything in the Delhi decision, Deepak Kumar 1985 Cri LJ NOC 96 (supra), from which any support can be derived by the State. The Court held that 'ministerial assistance' which the representative of the appropriate Government gives to the Board cannot be held violative of procedural safeguard provided in the Constitution. However, in so far as the observation of the Court that it will not be wrong even if the Board called a representative of the Government 'to explain the material already before the Board' is concerned, we would regard the same as an obiter dictum. Because, although Section 11(1) authorises 'further information' being called, it does not confer right on the Government or the detaining authority to appear before the Board. Indeed, this may tantamount to the representative being allowed to assume the role of a person appearing to justify or support the detention order by explaining the materials, which exercise is held by A.K. Roy 1982 Cri LJ 340 (SC) (supra) to be offensive to the constitutional mandates.
14. There remains now to be considered only the question whether the 'observations' appearing at para 94 in A. K. Roy's case (supra) should be considered 'Law' within the meaning of Article 141. This question has a long as well as a short answer. It would suffice to say that in A. K. Roy (supra), the vires of the various provisions of the Act 'including Section 11 was challenged and the provisions were interpreted by their Lordships and tested on Constitutional anvil. The Act as a whole was held valid, but the scope and ambit as well as the purport of its different provisions were analysed, explained and interpreted. Their Lordship's interpretation being binding on us in terms of Article 141, we have as alluded, on the facts of the instant case, tested and found Article 14 being breached as indeed Article 22(5) also. In doing so, we have not applied or enforced any 'observations' but we have merely followed their Lordships' interpretation of the law to which no objection can be taken. The other aspect is, whether interpretation of a statutory provision would be 'declaration of law' and the effect,of such declaration. It is a universally accepted jurisprudential postulate that interpretation of a statute is vocal manifestation of judicial power which rests in courts. Speaking on the purport of Article 141, one of us (Dr. Singh, J.) observed in Hitendra Nath's case 1984 Cri LJ 1558 (FB) (infra):
Judicial exposition makes vocal, by right reasons, a mute statute to enable at to command respect and obedience.
Indeed, our Constitution's basic structure rests on two imposing pillars of supreme strength - 'Rule of Law' and 'Judicial Review' Keshavanand : AIR1973SC1461 which recognises the role of Supreme Court as the guardian in chief of the Constitution with ultimate judicial power vesting in it. On a priori consideration, the apex court must have the final say in the matter: interpretation of any statutory provision of law in its judgment by the apex court operates in rem; it binds all organs of the State (including judiciary) and also all citizens. Indeed, while Article 141 mandates - 'The law declared by the Supreme Court shall be binding on all courts within the territory of India', what is further required by Article 144 is that 'all authorities' ('in the territory of India') shall act 'in aid of the Supreme Court'. We have no doubt that joint mandate of Articles 141 and 144 makes enforceable decisions of the Supreme Court, including its interpretation of statutory provisions throughout the territory of India.
15. This occasion is opportune, we feel, to state the unstated premises. As the process of interpretation is sui generis, different techniques are evolved and applied from time to time. Sometimes, the court may be inclined to read down the provision rather than striking it down, according primacy to the principle of presumption of constitutionality. This is what appears to have been done in A.K. Roy 1982 Cri LJ 340(SC) (supra) following perhaps the lead of Maneka Gandhi : 2SCR621 (supra), the impress whereof is writ large unmistakably on the decision in Roy's case (supra). Reading into a statute 'justice of Common Law' (principles of natural justice) was held legitimate in Maneka Gandhi. Indeed, in recent decision in Liberty Oil Mills : 3SCR676 this view was buttressed. According to us, because the Supreme Court cannot enact, the phraseology of Article 141 was so devised : the binding effect of its 'declaration of law was formulated as an injunction operative against the subordinate courts, the language of the Article betrayed vesting of legislative power in Supreme Court.
16. In support of the above proposition, reference may be made to judicial authority. In M/s. Shenoy & Co. : 155ITR178(SC) their Lordships held that 'declaration of the law' as to validity of an enactment pronounced by the Supreme Court was 'binding on everyone' and the contention that it was not binding against persons who were not parties to the proceedings in which such pronouncement was made was held repugnant to Article 141. In S. P. Gupta's : 2SCR365 case their Lordships held it to be 'elementary' that not a conclusion arrived at any previous decision, but the ratio of the decision was binding as a precedent in a subsequent case (see also B. Shama Rao : 2SCR650 . Indeed, much earlier also, in Behram Khurshid 0065/1954 : 1955CriLJ215 the Constitution Bench held, 'Once a statute is declared void under Article 13(1) or 13(2) by this Court, that declaration has the force of law and the statute so declared void is no longer law....'. As to the character and effect of the binding nature of the judgments of the Supreme Court, the decision of the Constitution Bench in Makhanlal'scase AIR 1971 SC 2286 contains an affirmative dictum. Their Lordships' observed:
The Judgment which was delivered did not merely declare the promotions granted to the respondents in the writ petition filed at the previous stage as unconstitutional but also laid down in clear and unequivocal terms that the distribution of appointments, posts or promotions made in implementation of the communal policy was contrary to the constitutional guarantee of Article 16. The law so declared by this Court was binding on the respondent State and its officers and they were bound to follow it whether a majority of the present respondents were parties or not to the previous petition.
Another patent and portent dictum we read in V. D. Dhanwatey : 68ITR385(SC) , wherein it was observed: 'Gradual and orderly development of law can only be accomplished by judicial interpretation. The Supreme Court's role in that regard is recognised by Article 141 of our Constitution'. The Court, in that case, was confronted with the task of 'bridging the gulf between ancient Hindu law texts and contemporary social needs. In A.K. Roy 1982 Cri LJ 340(SC) the delicate balance between security of the State/Society and individual liberty in the backdrop of growing global concern for 'Human Rights' and international norms of protection thereof was required to be properly secured and maintained.
17. We address ourselves now to the third question or the second contention raised on behalf of the petitioners in this case. We immediately extract the relevant provision :
12. Action upon the report of the Advisory Board.-- (1) In any case where the Advisory Board has reported that there is in its opinion, sufficient cause for the detention of a person, the appropriate Government may confirmthe detention order and continuethe detention of the person concerned for such period as it thinks fit.
(Underlining is ours)
It may be pertinent in this connection to recall what one of us (Dr. Singh, J.) observed in the Five Judge decision of Gauhati High Court in Hitendra Nath 1984 Cri LJ 1558 (FB) to reiterate that the scheme of the Act which is cast in the constitutional mould of Articles 21 and 22 must and does manifest the legislative intent to regulate the power of preventive detention in a manner as will agree with minimum curtailment of liberty and permitting recourse to the law only in cases f genuine 'necessity'. It was also observed that the provisions of the Act are to be construed in a manner as will ensure that the detention does not acquire 'at any time' a punitive character. This deduction followed the ratio of the decision in A. K. Roy 1982 Cri LJ 340 (SC) (supra) and the expression 'at any time' found in Section 14 of the Act. Indeed, this Court's duty to test the continuing validity of detention of any person ordered under the Act was related to the condition precedent ('necessity') projected in the core provisions of different sub-sections of sections of Section 3 of the Act. Reliance, to say so, was placed also on the decision in Merugu Satyanarayanan : 1982CriLJ2357 , and Ranchanlal : 1979CriLJ1306 and indeed, on the Constitutional mandate of Clauses (4) and (5) of Article 22 which, it was held, did not confer absolute power on the State to continue uninhibited detention of any person whether up to three months or even beyond that as such person must be communicated grounds of the detention 'as soon as may be' possible and he must also be afforded the 'earliest opportunity of making a representation against the order'. Indeed, in a Bench decision of the Gauhati High Court in Bikash Narayan 1984 Cri LJ 81, the question which has fallen for our determination in these two cases was squarely faced and answered by the Court, saying that confirmation of a detention order passed under the Act for a period of twelve months, without any indication at all in the record as to why the maximum period visualised by the Act was considered necessary, must be regarded as emanating from non-application of mind to relevant facts and that the exercise of the power under Section 12(1) in that manner would be illegal and unconstitutional. This was held relying, albeit, on the dictum in A. K. Roy 1982 Cri LJ 340 (supra) - 'whatever smacks of punishment must be scrupulously avoided in matters of preventive detention.'
18. It is true that there is high authority only for the proposition that non-specification of the period of detention in the confirmation order would not vitiate the order. (See - Habibulla : 1974CriLJ461 ; Milan Banik : 1974CriLJ917 . But the moot question is, whether non-application of mind to relevant facts and mechanical exercise of power of confirmation would vitiate continued detention of the detenu. In this connection, a reference may be made to significant observations in a few decisions of the apex Court:-
In my opinion that words 'for such period as it thinks fit' presuppose and imply that after receipt of the report of the Advisory Board the detaining authority has to make upits mind as to whether the original order of detention should be confirmed and if so, for what further periodthe detention is to continue.
Per Mukherjee, J. in Dattatraya : 1952CriLJ955
The language employed in Section 11 of the Act is different from the language of Section 3 and to my mind this difference indicates a contrary intention. The words 'such period as it thinks fit' have the meaning that Govt. has to specify and fix the period of such detention. If these words were construed in the manner suggested by the learned Attorney General it will lead to the result that...the Govt. would not be obliged to apply its mind to the question of duration at all. Such a conclusion to my mind has to be avoided unless the language employed conclusively points to it.
(Emphasis added).the State Govt. would have to take into accountall the circumstances including fresh developments and consequent event in deciding whether to keep the detenu in detention for the maximum period or to release him earlier.
(Per Curiam, in Suna Ullah : 1972CriLJ1514
The discretionto fix the duration within the maximum period has been given to the Govt. after considering all the relevant circumstances... the discretion to fix the period of detention in a particular case has to be exercised after taking into accounta number of imponderable circumstances....
(Per Mathew, J. speaking for the majority in Fagu Shaw : 1974CriLJ486 .
19. From the extracted observations of the apex court, it clearly follows that the power of confirmation inheres the necessity of considering relevant circumstances obtaining on the date when the confirmation is made. Indeed, the Section contemplates 'acting upon report of the Advisory Board' while the expressions 'may confirm', 'continue' and 'as it thinks fit' used therein postulate that the detention can be continued thereunder only upon consideration of facts and circumstances germane to the question. Indeed, the word 'continue' itself is manifestly pregnant, in our opinion, in so far as the ramification of the power is concerned although the apex court has not dilated upon this aspect. Indeed, the power of preventively detaining any person under the Act germinated earlier in point of time under Section 3 and its further growth or operation being interrupted by the interposition of the Advisory Board, 'necessity' to further 'continue' the detention must have justification on a priori consideration reappraisal of facts obtaining on the date of exercise of the power to 'confirm' the order of detention became an obvious requirement.
20. We may refer further, in this connection, to profe S. A. de Smith's view on the use of discretionary power by public authority. At page 297 of Judicial Review of Administrative Action (3rd Edn.) the learned author has pointed, 'if the exercise of a discretionary power has been influenced... by the disregard of relevant consideration, a court will normally hold that the power has not been validly exercised.' He has further expressed the view at page 298 that if the relevant factors are not specified 'it is for the courts to determine whether permissible considerations are impliedly restricted'. Reference may also be made to the observations of Lord Hodson and Lord Upjohn in Padfields case (1968) AC 997, who held that although no reasons in the order impugned in that case were given by the Minister for a decision and the statute conferred 'full and unfettered discretion' on him, the court was still entitled to see if he had left relevant matters out of consideration in taking the decision. Lord Wilberforce in Tameside case (1977) AC 1014, speaking on a statutory provision couched in 'subjective form' observed that even in such a case the exercise of the power must manifest 'proper self-direction' to relevant facts. Indeed, our own apex court in Sabir Ahmed's case : 3SCR738 , (which was also a case of preventive detention under COFEPOSA held that where statutory discretion was coupled with a duty the discretion must be exercised in a reasonable manner and failure to do so will render the decision void.
21. We are also inclined to take the view that Section 12(1) in terms provides a procedural safeguard against unauthorised encroachment on the liberty of a person which is evident from the object and scope of the provision considered in its own setting as also indeed against the background of the scheme of the Act. The absence in the Act of any provision for compulsory periodic review, for which the power of revocation under Section 14 cannot be regarded as an adequate substitute, also requires that the provision should be so read as to inhere a safeguard in the nature of areal substiute for periodic review. It is necessary to do to ensure that the provision does not operate prejudicially against the detenu. That infraction of a procedural safeguard renders invalid a detention order and indeed, also, the continued detention of a detenu, is by now well-established. (See Sher Mohammad : 3SCR154 , Sk. Salim : 3SCR394 . However, what Chandrachud, C. J., speaking for the Court in Ratan Singh AIR 1982 SC1 : 1982 Cri LJ 146 observed deserves to be extracted:. the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenu.
22. We have examined the record produced in this case by learned State Counsel Shri Jain to test the grievance of mechanical application of mind by the State Government in confirming detention in each case under Section 12(1) of the Act. In the case of petition Bharat, the note in the file refers to the Advisory Board's opinion that there was sufficient cause for his detention under the Act. In the same note, reference is made further to the maximum period of detention prescribed under Section 13 while seeking an order for specifying the period so that the order confirming the detention may be accordingly issued. There are only two other notings following this. The first one, dated 16-11-84 - 'May confirm for 12 months' and the second dated 16-11-84 is - 'Approved as above. Detain for 12 months'. The case of Daulat Singh is no better. The matter is similarly dealt in a casual and cavalier fashion in that while the first and the second notings are almost in similar terms, the third merely says : 'Yes'. In both cases, therefore, mechanical exercise of the power of confirmation is writ large on the face of the records. We do not find from the record consideration of any material by the confirming authority, while taking a decision as to confirmation, for specifying the period of detention. There is no escape from the conclusion that merely because the Act prescribed the maximum period of twelve months for which the detention under the Act could be continued, further detention of the detenu in each case for the maximum period of twelve months was, therefore, confirmed or continued.
23. We did not find in the records consideration of relevant circumstances that obtained on the date when the confirmation was made in each case. No reasons are given as to why the authority concerned considered it necessary to continue detention in each case for maximum period of twelve months. Whether the objective sought to be fulfilled in each case could be subserved by fixing the period of continued detention for a lesser period was not at all considered. Whether the 'mischief sought to be prevented had in the meantime vanished was also not considered.
24. For all these foregoing reasons, we have no hesitation to hold that the petitions must succeed. We hold the continued detention of the petitioner in each case to be unconstitutional and void and direct that the petitioners, Bharat and Daulat Singh, be set at liberty forthwith if not required in connection with any other case.
R.C. Shrivastava, J.
25. I have had the advantage of going through the draft-order prepared by my learned brother Dr. T. N. Singh, J. with due respect, for reasons that follow, I find myself unable to subscribe to the view, expressed by him in paragraph No. 10, that 'there would be duty on the Board to question the detenu why a written representation was not filed by him and if he would like to file such a representation for the consideration of the Board....'
26. Section 8(1) enjoins upon the detaining authority the duty of affording to the detenu earliest opportunity of making a representation against the detention order to the appropriate Government. Under Section 10, the detenue's representation, if any has to be placed by the appropriate Government before the Advisory Board, constituted under Section 9, along with other papers within three weeks from the date of detention. Then comes Section 11 which lays down the procedure to be followed by the Advisory Board. According to the procedure prescribed thereby, the Advisory Board is required to hear the detenu in person only 'if, in any particular case, it considers it essential to do so or if the person concerned desires to be heard.' If the Advisory Board does not consider it essential to do so nor does the detenu express desire to be heard, the section does not impose upon the Board the duty to ask the detenu as to why written representation was not made by him and whether he would like to submit such a representation for consideration of the Board.
27. I, however, agree with the other views expressed and the conclusion arrived at by my learned brother. The result is that the petitions have to be allowed and the petitioners directed to be set at liberty forthwith if not required in connection with any other case.
28. Order delivered by the Division Bench. We have recorded separate orders. The result is that, the continued detention of both the petitioners being unconstitutional and void, we direct that they be set at liberty forthwith if not required in connection with any other case.