Case Note & Summary
The Supreme Court of India dealt with three writ petitions filed under Article 32 of the Constitution by detenus challenging their preventive detention orders passed under Section 3(1) read with Section 3(2) of the Maintenance of Internal Security Act, 1971. The petitions were heard together because they raised similar questions of law concerning procedural safeguards in habeas corpus proceedings and the communication of grounds of detention. In the lead petition, the detenu Shaik Hanif was arrested on February 23, 1973, pursuant to a detention order dated February 19, 1973, passed by the District Magistrate, West Dinajpur, West Bengal. The grounds of detention stated that on July 3, 1972, the detenu along with his associates kept concealed 20 bundles of telegraph copper wire weighing 2 quintals 60 kilograms underground in his courtyard with a view to disposing of the same at an opportune moment. The copper wire was recovered on the basis of confession made by his associates; police seized the wire and arrested the associate but the detenu evaded arrest. The detention was on the ground that the detenu was acting in a manner prejudicial to the maintenance of supplies and services essential to the community because his activity seriously affected telegraph facilities. The State Government approved the detention on March 1, 1973. The detenu's representation was rejected on April 5, 1973, and forwarded to the Advisory Board, which reported on April 24, 1973, that there was sufficient cause for detention. The State Government thereafter confirmed the detention order under Section 12(1) of the Act and directed that detention continue till the expiration of 12 months from the date of detention or until the expiry of the Defence of India Act, 1971, whichever was later. The other two petitions involved similar circumstances. The main legal issues before the Court were whether the State was required to file a counter-affidavit sworn by the District Magistrate who passed the detention order and whether the Deputy Secretary's affidavit, which did not claim personal dealing with the case, could be a substitute; and whether the non-disclosure of 'reliable information' and the description 'veteran copper wire stealer' in the counter-affidavit, which indicated material other than the solitary ground communicated to the detenu, violated Article 22(5) of the Constitution by denying an effective representation. The petitioners also raised constitutional challenges to the Maintenance of Internal Security Act and the continuance of Emergency, but these were not decided. The Court held that when a Rule Nisi is issued in a habeas corpus petition, it is incumbent upon the State to satisfy the court that the detention is legal and in conformity with mandatory provisions of the Act and Article 22(5). Since the court is precluded from testing the subjective satisfaction of the detaining authority by objective standards, it is desirable that the counter-affidavit be sworn by the District Magistrate or the authority whose subjective satisfaction formed the basis of the detention order; if that is not possible, a responsible officer who personally dealt with the case in the Government Secretariat may swear the affidavit. In the present case, the Deputy Secretary did not claim personal dealing and the explanation for not furnishing the District Magistrate's affidavit due to transfer was far from satisfactory, amounting to an impropriety that could assume the shape of a serious infirmity. On the second issue, the Court found that the counter-affidavit's reference to 'reliable information' and 'veteran copper wire stealer' showed that material beyond the solitary ground was before the detaining authority, and withholding that material without justification under Article 22(6) violated Article 22(5) because it prevented the detenu from making an effective representation. The Court also noted that the criminal biography supplied by the State revealed that all material particulars necessary for effective representation were not communicated. Accordingly, the detention orders were held to be violative of Article 22(5) and liable to be quashed. The petitions were allowed and the detention orders set aside.
Headnote
A) Preventive Detention - Habeas Corpus Proceedings - Counter-Affidavit Requirement - Maintenance of Internal Security Act, 1971, Section 3(1),(2); Constitution of India, Article 22(5) - In a habeas corpus petition where Rule Nisi is issued, the State must satisfy the court that detention is legal and conforms to mandatory provisions of the Act and Article 22(5). The counter-affidavit should normally be sworn by the District Magistrate or authority whose subjective satisfaction led to the detention order; if not possible for sufficient reason shown to the court, it should be sworn by a responsible officer who personally dealt with the case in the Government Secretariat. In the present case, the Deputy Secretary's affidavit did not state personal dealing and the explanation of District Magistrate's transfer was unsatisfactory; failure to furnish detaining authority's affidavit amounted to impropriety which, combined with other circumstances, could become a serious infirmity, especially where mala fides are alleged. Held that this failure contributed to vitiating the detention. (Paras not mentioned) B) Preventive Detention - Communication of Grounds - Non-Disclosure of Material Relied Upon - Constitution of India, Article 22(5); Maintenance of Internal Security Act, 1971 - The detenu must be communicated all material particulars and information relied upon by the detaining authority to enable an effective representation. In this case, the counter-affidavit revealed 'reliable information' and the description 'veteran copper wire stealer', which implied a long course of repetitive thievery of copper wire, but that information was withheld from the detenu and not justified under Article 22(6) as public interest. Since the non-disclosure of such material prevented the detenu from making an effective representation, the detention order violated Article 22(5) and was liable to be quashed. Held that each of the three detention orders was illegal on this ground. (Paras not mentioned)
Issue of Consideration
Whether failure to file counter-affidavit sworn by District Magistrate who passed detention order renders detention illegal, especially when affidavit by Deputy Secretary who did not personally deal with case; whether non-disclosure of reliable information and material other than communicated ground violates Article 22(5) of Constitution; whether MISA provisions unconstitutional for lack of objective determination and impartial reconsideration; whether continuation of Emergency indefinitely is unconstitutional
Final Decision
Petitions allowed; detention orders quashed as illegal for violation of Article 22(5) of the Constitution due to non-disclosure of vital material and for impropriety in not furnishing counter-affidavit of the detaining authority. The Court did not decide the constitutional challenges to the Maintenance of Internal Security Act or the continuation of Emergency.
Law Points
- State must satisfy court of legality of detention in habeas corpus
- counter-affidavit should be sworn by detaining authority or responsible officer personally dealing with case
- failure to file detaining authority's affidavit is impropriety
- non-disclosure of reliable information/material relied upon violates Article 22(5)
- 'veteran copper wire stealer' implies habitual thievery requiring disclosure
- detention order liable to be quashed if effective representation denied
