The Judgment of the Court was delivered by

V. Ramaswami, J.:— This is a petition for the issue of a Writ of Habeas Corpus filed by the wife of one Esmail who was detained u/s. 3(1)(i) and (iv) of the Conservation of. Foreign Exchange and Prevention of Smuggling Activities Act, 1974 hereinafter referred to as the Act. The order of detention is dated 20-10-83. He was arrested and detained on 10-11-83. Immediately thereafter the grounds of detention were served on the detenu. He sent his written representation on 28th Nov. 1983 with a request that he may be permitted (1) to be represented by an advocate and (2) to examine witnesses on his behalf. In the meantime, on 25-11-83 itself the Government referred the matter to the Advisory Board u/s. 8(b) of the Act with a statement that no representation had so far been received from the detenu. After the receipt of the representation, by their communication dt. 28th Nov. 83 the Government forwarded the written representation of the detenu also to the Advisory Board. On the request of the detenu for permission to engage an advocate to represent him ‘to explain his case’ and for permission to examine witnesses, by a letter dt. 5-12-83 the Chairman of the Advisory Board informed (not?) to entertain the request of the detenu to permit an advocate to represent him before the Advisory Board at the time of the personal hearing but that the detenu is permitted to examine witnesses. The Government was also informed that the detenu may be informed accordingly. Since the only point that is raised in this writ petition relates to the legality of the rejection of the petitioner's request for permission to be represented by an advocate, Advisory Board dt. 5-12-83 addressed to the Government:

“Thiru S. Esmail, the detenu in his written representation submitted to the Government has requested for permission to have an advocate to represent his case before the Advisory Board at the time of the personal hearing. As per S. 8(e) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities, Act, 1974 the detenu is not entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report are confidential. Apart from the said provision, the Board feels that having regard to the nature of the proceedings and the function of the Advisory Board which is mainly to find out whether there is sufficient cause for the detention of the person concerned on the materials on record, the detenu cannot be allowed to be represented by an Advocate. The Board is therefore not in a position to entertain the request of the detenu to permit an Advocate to represent him before the Advisory Board at the time of the personal hearing. However, the detenu is permitted to have the assistance of a friend at the time of the personal hearing before Advisory Board. The detenu has also sought permission to examine witnesses before, the Advisory Board at the time of the personal hearing. The detenu is being informed in the notice of personal hearing that he is permitted to examine witnesses and that he can keep ready his witnesses for being examined at the time of the personal hearing before the Advisory Board. The detenu may be informed accordingly.”

2. The main ground of attack on the validity of the detention order was that the request of the detenu for assistance of a lawyer at the time of the personal hearing before the Board had been considered only by the Chairman and rejected and it was not done by the Advisory Board, as such. The records produced at that time also did not show the consensus of the other two Members of the Board in this regard. The Board itself was not impleaded but subsequently the petitioner filed W.M.P No. 11323 of 1984 which we have ordered. On behalf of the Board the Sub-Assistant Registrar, Administrative Department, High Court, Madras who was in charge of the cases referred to the Advisory Board has filed a counter-affidavit. After stating that though the letter dated 5-12-1983 has been signed by the Chairman of the Advisory Board”, the decision declining the petitioner's request for legal assistance was taken by the Board and not by the Chairman alone, the deponent proceeded to set out the procedure adopted by the Advisory Board in disposing of COFEPOSA cases and the procedure as stated in the counter-affidavit is as follows:

“The Government despatch the copies of the detention orders along with the connected papers separately to each of the members and the Chairman. All the sets of papers are received in the High Court and I personally take the papers to the Chairman and the Members and hand them over to the Chairman and Members. The Chairman will then suggest tentative dates for the meeting of the Advisory Board after taking into-consideration the last date before which the Advisory Board's report has to be sent to the Government. While scrutinising the papers, the Chairman also will see whether any request has been made for legal assistance or friendly assistance. The Chairman will then ask me to meet the other two Members and find out whether the date fixed for the meeting would suit them and also what their views are regarding the request for the provision of legal assistance or friendly assistance. After obtaining the opinion of the Members of the Advisory Board about the date of the meeting and the request for legal assistance or friendly assistance, I will orally inform the Chairman of the opinions expressed by the Members. Thereafter the Chairman will express the consensus of view of the Members and send a communication signed by him alone to the detenu through the Government informing him about the date of personal hearing and the Board's view about his request for legal assistance, if any. The same procedure was followed in this case as well. The Board did consider the petitioner's request and decided not to permit the detenu to be represented by counsel.

All notices and communications are signed only by the Chairman and it is impracticable to get all notices and communications signed by all the Members of the Board. Such a procedure is also not contemplated under the Act. It is only the ultimate opinion of the Board that is and has to be signed by all the Members of the Board”.

3. It may be seen from the above statement in the counter-affidavit that on the request for legal assistance the opinion of the two Members was orally communicated through the Sub-Assistant Registrar to the Chairman, that the Chairman and the other Members of the Advisory Board did not consult themselves or confer themselves and arrive at a consensus or decide whether to permit or not to permit legal assistance. Though on the averments in the counter-affidavit we have no doubt that each of the members communicated their view to the Chairman and the Chairman communicated the decision to the Government, we have to consider as to whether this procedure adopted is in accordance with the provisions of the Act and the constitutional guarantees.

4. Article 22(1) of the Constitution states that no person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice. However, Cl. (3) provides that this constitutional guarantee is not applicable to any person who is arrested or detained under any law providing for preventive detention. In such case, therefore, the rights of the detenu will have to be determined with reference to the provisions of the Preventive Detention Act under which he was detained. Even in the case of preventive detention the Constitution itself provides for certain guarantees and one such is Cl. (4) which requires the law providing for preventive detention not to authorise the detention of a person for a period longer than three months unless the Advisory Board has reported before the expiry of that period that there is, in its opinion, sufficient cause for such detention. Section 8 of the Act provides for constitution of the Advisory Boards and their functions. Cl. (b) of Section 8 requires that the appropriate Government shall within five weeks from the date of detention of a person make a reference in respect thereof to the Advisory Board and Cl. (c) sets out the procedure to be followed by the Board and the period within which their report under Art. 22(4)(a) of the Constitution is to be sent. Since the provisions of Cl. (c) are relevant, we may set out that provision here:

“The Advisory Board to which a reference is made under Cl. (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned.”

5. Clause (e) of S. 8 reads as follows:

“A person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.”

6. Though this clause states that a detenu shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, the Supreme Court had considered the scope in a number of cases in the context of the procedural safeguards available to a detenu and held that though the detenu is not legally entitled to be represented by a legal practitioner, the clause neither prohibits the detenu making a request to the Board to permit him to be represented by a legal practitioner nor does it prohibit the Board from permitting a detenu to get legal assistance in connection with the case before it. In the circumstances, therefore, the Supreme Court further held in the decisions which we will notice hereafter that the Advisory Board whenever a request is made by a detenu for legal assistance will have to dispose of the case on merits having regard to the facts and circumstances in each case.

7. In one of the earliest cases reported in Nand Lal v. State of Punjab, (1981) 4 SCC 327 : AIR 1981 SC 2041 : (1981 Cri LJ 1501) arising under the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 7 of 1980 which also contained a provision similar to S. 8(e) in S. 11(4) the Supreme Court held that the history of personal liberty is largely the history of procedural safeguards and that in the context of the provisions against deprivation of life and liberty except under “the procedure established by law” carried with it the inherent right to legal assistance. However, preventive detention is essentially political and as such it is the concern of the statesmen and, therefore, within the domain of the Legislature, and not the Judiciary. In the light of these constitutional principles with reference to life and liberty of an individual and the domain of the legislative authority, the Supreme Court considered the provisions of S. 11(4) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 7 of 1980 denying a detenu a right to be represented by a lawyer as meaning only denial of as a legal right. However, where a detenu makes a request for legal assistance his request has to be considered on its own merits in each individual case. In Kavita v. State of Maharashtra, (1981) 3 SCC 558 : AIR 1981 SC 1641 : (1981 Cri LJ 1262) with reference to section 8(e) of the Act itself the Supreme Court observed:

“It is true that while S. 8(e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer. We agree that the importance of legal assistance can never be overstated and as often than not adequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Art. 21 of the Constitution and the right to be heard given to a detenu by S. 8(e) COFEPOSA. These rights may be jeopardised and reduced to mere nothings without adequate legal assistance. That would depend on the facts of each individual case, in the light of the intricacies of the problem's involved and other relevant factors. Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case.”

8. These observations were also approved in the case in Nand Lal v. State of Punjab, (1981) 4 SCC 327 : AIR 1981 SC 2041 : (1981 Cri LJ 1501). In this decision while accepting the proposition that the Board is entitled under the provisions of the Act itself to devise its own procedure it was also held that if the procedure adopted by the Board is considered to be arbitrary it would vitiate the impugned order of detention. The learned Public Prosecutor referred to the decision in Herniata v. State of Maharashtra, (1981) 4 SCC 647 : AIR 1982 SC 8 : (1982 Cri LJ 150) as if that decision did not accept the ratio of the earlier two judgments which we have already referred to. In that case again arising under the Act the request of the detenu for legal assistance was rejected and this was questioned on the ground that it was arbitrary and was based on a misconception of the law. When the letter from the advocate of the detenu requesting for legal assistance for the detenu was received by the Advisory Board, the Secretary of the Board sent a reply to the Advocate informing him that “in view of S. 8(e) of the Act the detenu is not entitled to appear before the Advisory Board by any legal practitioner and the Advisory Board has not permitted a legal practitioner to appear in any reference made to it under the aforesaid Act and hence your request cannot be acceded to”. The submission on behalf of the detenu in that case was that the rejection of the request of the detenu's counsel by the Advisory Board on the ground that in the past no legal practitioner had been allowed to appear on behalf of the detenu has been passed on a misconception of the law. This contention was rejected by the Supreme Court with the following observation:

“We are unable to accept the submission of learned counsel on two grounds (i) the Advisory Board whose action is complained of is not a party before us, and (ii) our decision on the point would be merely academic. It would be academic because after rejection of the request, the Board reviewed the case of the detenu and gave its opinion whereupon the Government confirmed the detention.”

9. We are unable to agree with the learned Public Prosecutor that the Supreme Court had given any view different from that which it had expressed earlier. We may also point out that it is the same two learned Judges who decided this case have decided the earlier two decisions which we have cited. They have not also specifically referred to those cases and dissented. We also find that in that decision reported in Hemlata v. State of Maharashtra, (1981) 4 SCC 647 : AIR 1982 SC 8 : (1982 Cri LJ 150), the request seems to have been made by the detenu even while he was making oral representations before the Advisory Board in person and that was rejected by the Board and that was considered to be sufficient to make the rejection legal. But in our case, admittedly no such request was made after-the rejection-order was communicated by the Chairman, at the time of personal hearing. The other case cited by the learned Public Prosecutor is Phillips Anne Duke v. State of Tamil Nadu, (1982) 2 SCC 389 : AIR 1982 SC 1178 : (1982 Cri LJ 1389). That was a case where the Advisory Board rejected the request of the detenu for legal assistance and when that was questioned on the ground that the case is a complicated one and the Advisory Board should have permitted legal assistance the Supreme Court observed that the Advisory Board should have permitted legal assistance, the Supreme Court observed that the Advisory Board consisting of three Judges of the High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus and it was a matter for the decision of the Advisory Board and they did not think that they will be justified in substituting their judgment in the place of the judgment of the Advisory Board.

10. We may point out that this question as to whether the rejection of the request was on merits justifiable or not does not arise for consideration in this case. What all that was argued by the learned counsel for the petitioner is that either the rejection order should be considered as one made by the Chairman alone or even if it was construed that there was a consensus of the other members also in the rejection, the procedure adopted was not constitutionally valid and legal. In the reference to the Supreme Court judgments there could be no doubt that when a petition requesting for legal assistance is received from a detenu the Advisory Board has to consider it on merits and dispose of the same. There could be no doubt that the Advisory Board can settle its own procedure. But the law requires that their opinion be on the basis of a consensus arrived at together and not individually and it cannot go to the extent of not working as a Board. If we consider this aspect with reference to the report of the Advisory Board to be sent to the Government under Art. 22(4)(a) it would be obvious that Members of the Advisory Board cannot function separately and individually. We have set out Cl. (c) already. In a case where a detenu does not want to appear and make any personal representation to the Board, it could not be stated that each of the Members of the Advisory Board can look into the records individually and send their opinion. When the Constitution requires an opinion to be obtained from an Advisory Board consisting of three Members, it is not open to the Government to obtain the opinion of the three individually and act according to the majority opinion. The Advisory Board has to function as one unit and the decision will have to be arrived at a consensus and on the basis of consensus. It is not possible to agree with the learned Public Prosecutor that the opinion of each Member can be oral or can be communicated to the Chairman through somebody else. The question whether a person has to be permitted legal assistance or not is also not merely incidental but valid.

11. As pointed out by the Supreme Court as often than not adequate legal assistance may be essential for the protection of fundamental rights to life and personal liberty guaranteed under Art. 21 of the Constitution and the said right may be jeopardised and reduced to mere nothing without adequate legal assistance in the light of the intricacies of the problems involved and other relevant factors. In fact, though the Constitution provided that in the case of preventive detention as such the constitutional guarantee relating to the right to be defended by a legal practitioner of his choice, could not be given to a detenu by providing in Art. 22(1) that a person who is arrested is entitled to be defended by a legal practitioner, the Constitution had emphasised the importance of legal assistance for a detained person. Therefore, the question as to whether a person is to be permitted to be defended by an Advocate could not be considered to be less important than the consideration of the merits itself as to whether there is sufficient cause or not for such detention. In the circumstances, therefore, adopting a procedure different from that if deciding it as a body not be accepted as legal, or recommended under the Article. We may also point out that there is no guarantee in the procedure adopted by the Board that the person to whom a Member had conveyed his views had carried the views to the Chairman correctly or in the form in which he wanted to express it.

12. We are also of the view that unless the opinion of each Member is reduced to writing one cannot be certain as to whether they agreed and it is also not possible of verification on a future occasion. We are also of the view that having regard to the fact that the Advisory Board functions under a statute and with reference to a Constitutional duty of the Government under Art. 22(4) the Board cannot transact anything orally and their decisions or orders under the statute will have to be in writing signed by the members. Therefore, though we have no doubt that the two Members have sent their views to the Chairman through the Sub-Assistant Registrar, Administrative Side, High Court, Madras, suggesting rejection of the request of the detenu for legal assistance, we are of the view that the procedure adopted is neither legal nor warranted by the provisions of S. 8(c) or (e) nor can we accept that it is just and reasonable having regard to the fundamental right of the individual for life and personal liberty under the Constitution. It necessarily follows that the detenu had no effective opportunity of defending himself and, accordingly the order of detention is invalid.

13. The writ petition is accordingly allowed, the order of detention is set aside and the respondent is directed to set the detenu at liberty forthwith.

14. Petition allowed.