NDLI: Sarabjeet Singh Mokha Vs. The District Magistrate, Jabalpur & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Constitution of India: Art.22(5)
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Constitution of India, National Security Act, 1980 (65 of 1980)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10 Referred Case 11 Referred Case 12 Referred Case 13 Referred Case 14 Referred Case 15 Referred Case 16 Referred Case 17 Referred Case 18 Referred Case 19
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	Constitution of India: Art.22(5) – Preventive detention – Protection to undertrials and detainees – Held: Art.22(5) mandates that (i) the authority making the order shall “as soon as may be” communicate the grounds on which the order has been made to the person detained; and (ii) the detaining authority shall afford to the person detained “the earliest opportunity of making a representation against the order” – Both these procedural requirements are mutually reinforcing – The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made – The expression “as soon as may be” imports a requirement of immediacy – The communication of the grounds is in aid of facilitating the right of the detenu to submit a representation against the order of detention – The significance of Art.22 is that the representation which has been submitted by the detenu must be disposed of at an early date.National Security Act, 1980: s.3(4) – Report to the State Government – Held: Once an order of detention is made, the officer making the order must forthwith report the fact to the State Government, together with the grounds on which the order has been made and other particulars which have a bearing on the matter.National Security Act, 1980: s.8(1) – Communication of grounds of detention – Requirement of immediacy – Held: s.8(1) uses the expression “as soon as may be”, qualifying it with the requirement that the communication of grounds should ordinarily not be later than five days and, in exceptional circumstances, for reasons to be recorded in writing not later than ten days from the date of detention – s.8(1) also embodies the second requirement of Art.22(5) of affording to the detenu the earliest opportunity of making a representation against the order to the appropriate government – Constitution of India – Art.22(5) National Security Act, 1980: s.8 – Delay in considering the representation – The requirement under s.8 of the disclosure and communication of the grounds of detention and the affording of an opportunity to the detenu of making a representation against such an order to the appropriate government, is distinct from the reference to the Advisory Board – In the instant case, in spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on 15 June 2021, the State Government took another one month in arriving at a decision on the appellant’s representation dated 18 May 2021 – By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of s.8(1) of having the representation being considered expeditiously – The communication of the grounds of detention to the detenu “as soon as may be” and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate government are intended to ensure that the representation of the detenu is considered by the appropriate government with a sense of immediacy – The State Government failed to do so – The making of a reference to the Advisory Board could not have furnished any justification for the State Government to not deal with the representation independently at the earliest – The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu – The law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA – State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.National Security Act, 1980: Failure to communicate decision on the representation – Art.22(4), in guaranteeing a right to make a representation to the detenu creates a corresponding duty on the State machinery to render this right meaningful – The detenu’s right to make a representation and for it to be considered expeditiously would ring hollow without a corollary right of the detenu to receive a timely communication from the appropriate government on the status of its representation- be it an acceptance or a rejection –Failure in timely communication of the rejection of representation is a relevant factor for determining the delay that the detenu is protected against under Art.22(5) – Failure of the Central and the State Government to communicate the rejection of the appellant’s representation in a time-bound manner is sufficient to vitiate the order of detention.
Judge	Hon'ble Dr. Justice D.Y. Chandrachud
Neutral Citation	2021 INSC 702
Petitioner	Sarabjeet Singh Mokha
Respondent	The District Magistrate, Jabalpur & Ors.
SCR	[2021] 11 S.C.R. 468
Judgement Date	2021-10-29
Case Number	1301

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