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Ram Sukrya Mhatre v. R.D Tyagi And Others
Factual and Procedural Background
The appellant was detained on 26 April 1991 under Section 3 of the National Security Act, 1980 on the detaining authority’s subjective satisfaction that he was a “desperate goonda” whose violent activities had created a reign of terror in Village Pisarve and neighbouring areas, thereby disturbing public order. The statutory grounds were served on the appellant within the prescribed time.
After the Advisory Board rejected an initial representation, the appellant sent a further representation to the Central Government on 6 July 1991. The representation reached the Central Government on 15 July 1991 and was ultimately rejected on 24 August 1991, with communication to the appellant on 27 August 1991. Alleging undue delay, the appellant filed a writ petition before the High Court, which was dismissed on 18 September 1991. The appellant then approached the Supreme Court by way of a Special Leave Petition, which was granted. The Supreme Court decided to dispose of the matter at the notice stage after directing the Central Government to produce its records.
Legal Issues Presented
- Whether the 18-day period (6 August 1991 to 24 August 1991) taken by the Central Government to dispose of the appellant’s representation violated the constitutional mandate of Article 22(5) requiring “expeditious” consideration, thereby vitiating the order of detention.
- Whether the detaining authority failed to consider that, after being released on bail on 11 February 1991, the appellant allegedly committed no fresh acts affecting public order, rendering the detention order mechanical and without proper application of mind.
Arguments of the Parties
Appellant's Arguments
- The Central Government offered no satisfactory explanation for the 18-day delay between receipt of the requisite comments on 6 August 1991 and rejection of the representation on 24 August 1991; such “wanton laches” violate Article 22(5).
- The detaining authority allegedly ignored that the appellant, while on bail from 11 February 1991 until the detention order of 26 April 1991, had engaged in no further activities disturbing public order, indicating non-application of mind and a mechanical exercise of power.
Respondent's Position
- Through production of the original note-file, the Central Government showed continuous, diligent processing: notings by the Deputy Secretary (8 August), Joint Secretary (12 August), Secretary (12 August) and the Home Minister (24 August), evidencing absence of negligence or red-tapism.
- The detaining authority’s counter-affidavit stated that the period of bail and the likelihood of future similar acts were expressly considered before issuing the detention order.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Salam & Thiyyan v. Union of India (1990) 3 SCC 15 | No rigid time-frame can be fixed for “reasonable” disposal of a detention representation; courts must examine whether delay is attributable to negligence, callousness or avoidable red-tapism. | The Court adopted this ratio and assessed the Central Government’s file to determine whether the 18-day period reflected culpable delay; it concluded it did not. |
| K.M. Abdulla Kunhi v. Union of India (1991) 1 SCC 476 | The constitutional right to make a representation under Article 22(5) necessarily includes the right to proper and timely consideration of that representation. | While reaffirming the principle, the Court distinguished the present facts by holding the consideration here was, in fact, timely and proper. |
Court's Reasoning and Analysis
Recognising that Article 22(5) mandates expeditious consideration of a detenu’s representation by both State and Central Governments, the Court scrutinised the Central Government’s original records. The note-file showed:
- 8 August: Deputy Secretary received and put up the file.
- 9 August: File moved to the Joint Secretary.
- 12 August: Joint Secretary recorded views; Secretary concurred the same day.
- 24 August: Home Minister rejected the representation.
This sequence demonstrated continuous processing without negligent gaps or bureaucratic inaction. Consequently, the 18-day period was deemed a reasonable time in the circumstances.
On the second contention, the Court relied on the detaining authority’s affidavit confirming that the appellant’s conduct while on bail and the likelihood of future offences had been expressly considered. The Court therefore found no mechanical or non-application of mind in issuing the detention order.
Holding and Implications
APPEAL DISMISSED.
The Supreme Court upheld the detention, ruling that the Central Government’s 18-day disposal of the representation did not breach Article 22(5), and that the detaining authority had duly considered all relevant factors. The decision reinforces that modest administrative intervals, supported by contemporaneous file notings, will not invalidate preventive detention orders, and sets no new precedent beyond affirming existing principles on timely consideration of representations.
Order
1. Special leave granted.
2. The appellant was detained under Section 3 of the National Security Act, 1980. The detaining authority found on subjective satisfaction, on the material placed before it, that the appellant is a desperate goonda indulging in violent and terrorising activities at Village Pisarve and its surrounding areas and that the appellant has created a reign of terror among the people in the village and the residents in the neighbourhood are apprehending danger to their lives and that they were constantly living under a shadow of fear. Thereby the public order has been affected. Instances in that regard were enumerated. Accordingly, the order of detention was passed and served on the appellant. The grounds on which the subjective satisfaction was reached was communicated within the statutory period.
3. After the representation was rejected by the Board the appellant made a representation to the Central Government on July 6, 1991. It was received by the Central Government on July 15, 1991. The Central Government sought information from the State Government through their wireless message dated July 16, 1991. The State Government in turn sought the information from the detaining authority on July 24, 1991; and the comments and the material was forwarded by the detaining authority to the State Government on receipt whereof the State Government submitted the parawise comments to the Central Government on July 31, 1991. The Central Government received the information on August 6, 1991. The order was passed by the Central Government rejecting the appellant's representation on August 24, 1991 and was duly communicated on August 27, 1991.
4. Calling in question the order the appellant filed a writ petition in the High Court. Apart from other grounds, one of the contentions raised in the High Court was that the delay in disposal of the representation by the Central Government offend his rights under Article 22(5) of the Constitution. The Division Bench in the impugned judgment dated September 18, 1991 rejected the contention. Thus, this appeal.
5. When the special leave petition came up for consideration this Court directed the Central Government to keep the record available and that the matter would be disposed of at the notice stage itself. Thus now today, apart from the counter-affidavit filed by the detaining authority, the records of the Central Government are also made available by the learned Additional Solicitor-General, Shri Altaf Ahmad. We have perused the records as well.
6. Shri Khanwilkar, learned counsel for the appellant has contended that in the counter-affidavit filed by the Central Government no explanation was given for the delay caused from August 6, 1991 till August 24, 1991, the date on which appellant's representation was rejected by the Central Government. Unless satisfactory explanation is given by the Central Government for the delay of 18 days caused in disposal of the representation, the detenu is entitled to be released as his representation was unduly delayed. Wanton laches on the part of the Central Government in disposal of the representation offend his right to freedom guaranteed under Article 22(5) of the Constitution.
7. It is settled law that right to representation under Article 22(5) of the Constitution includes right to expeditious disposal not only by the State Government under the relevant provision of the statute, but also by the Central Government. But in each case it is one of fact to be ascertained whether the Central Government or the State Government, as the case may be, has caused delay due to negligence, callous inaction, avoidable red-tapism and undue protraction by the authorities concerned. As stated earlier, expedition is the rule and delay defeats mandate of Article 22(5). So the authority is obligated to explain the delay by either filing a counter-affidavit by the officer concerned on behalf of the appropriate government or by producing the record in dealing with the case. Unfortunately, in this case the delay was not properly explained in the counter-affidavit filed on behalf of the Central Government. Pursuant to the notice issued by this Court, the record has been produced before this Court. The note file discloses that on August 8, 1991 the officer concerned put up the note before the Deputy Secretary, who in turn has submitted the file on August 9, 1991 before the Joint Secretary. The Joint Secretary expressed his views on August 12, 1991 and on the same day the Secretary also disposed of the same and forwarded the file to the Home Minister. The Home Minister on consideration of the record, by his noting dated August 24, 1991 rejected the representation of the appellant and thereafter it was duly communicated on August 27, 1991.
8. This Court in Abdul Salam & Thiyyan v. Union of India (1990) 3 SCC 15 to which one of us (K. Jayachandra Reddy, J.) was a member elaborately considered the entire case law on the question of delay in disposal of the representation by the Central Government and held that no hard and fast rule as to the measure of reasonable time can be laid down and each case has to be considered from the facts presented therein and that if there is no negligence or callous inaction or avoidable red-tapism on the facts in that case, it does not warrant interference. The need to make a reference to all the decisions once over is thus obviated. We respectfully agree with the ratio therein.
9. In K.M Abdulla Kunhi v. Union of India (1991) 1 SCC 476 the learned counsel for the appellant relied upon the ratio in paragraph 11. There is no controversy and it is well settled law that the constitutional right to make a representation under Article 22(5) by necessary implication guarantees the right to proper consideration of the representation also.
10. In view of the facts placed before us, we have no hesitation to come to the conclusion that the representation of the appellant was disposed of expeditiously with least avoidable delay. In the circumstances, we find no infirmity in the order passed in the disposal of the representation by the Central Government.
11. The learned counsel further contended that the appellant was released on bail on February 11, 1991 and the order of detention was passed on April 26, 1991. In between there is no untoward act committed by the detenu creating any disturbance of the public order and this factor was not taken into account by the detaining authority. Consequently, the order of detention was passed mechanically without applying the mind by the detaining authority. In the counter-affidavit filed by the detaining authority, it is clearly stated that the detaining authority had kept this fact also in view and that it was stated that the appellant was likely to indulge in similar acts in the near future. This is also a factor which was taken into account by the detaining authority in passing the detention order.
12. Accordingly, we find no infirmity in the order passed by the detaining authority. The appeal is accordingly dismissed.
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