Article 22(5): The Grounds and the Right of Representation

Section 3(3) of COFEPOSA 1974 is drafted expressly by reference to the Constitution: "For the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention."

Two points follow. The five day period is the ordinary rule and fifteen days is the exception, and the exception requires exceptional circumstances and reasons recorded in writing. An authority that takes eleven days without recording reasons has breached the section even though it is within fifteen days.

The six rules the courts have built on clause (5)

Each of these has a chapter of its own, and they are listed here so that a student can see that they are a single scheme rather than a list of unrelated points.

1. The grounds must not be vague, irrelevant or non-existent. A ground the detenu cannot answer is no ground. See [The Grounds of Detention: Vague, Irrelevant and Stale].
2. There must be a live link between the grounds and the detention. Stale material cannot support a prediction. See [The Live Link, and Delay in Passing the Order].
3. The mind must have been applied. Grounds copied mechanically show no satisfaction. See [Non-Application of Mind, and the Mechanical Order].
4. The grounds must be intelligible to this detenu. Service in a language he cannot read is not communication. See [Communicating the Grounds, and the Language the Detenu Understands].
5. The material relied on must be supplied. An opportunity to represent against conclusions whose basis is withheld is not the earliest opportunity of making a representation. See [The Documents Relied On, and the Right to an Effective Representation].
6. The representation must be decided, without unexplained delay, by everyone who has to decide it. See [Delay in Deciding the Representation].

The distinction that decides disclosure disputes

Khudiram Das v. State of West Bengal, AIR 1975 SC 550, worked in [Subjective Satisfaction, and How Far a Court May Examine It], draws the line that governs.

Article 22(5) requires the communication of the grounds of detention and not of other particulars. Other particulars may include matter relating to the background of the circumstances in which the authority reached its satisfaction, or particulars found to be administratively necessary to communicate to the State Government so that its supervisory function may be effectively discharged. Nothing in article 22(5) or in the Act requires those to be communicated to the detenu.

That is the reason a detenu is not entitled to the whole file. What he is entitled to is the grounds, and the material on which those grounds rest.

A worked example

Sunita is detained on 1 June. The grounds are served on 12 June with a covering note saying that service was delayed because the file was with the Advisory Board section.

Is the service within time? Fifteen days from 1 June is 16 June, so it is within the outer limit.

Is it lawful? Not on those facts. Section 8(1) allows service after five days only in exceptional circumstances and for reasons recorded in writing. Administrative movement of a file is not an exceptional circumstance, and a covering note is not the same as reasons recorded in writing before or at the time.

What follows? The breach is of a mandatory provision, so it is a plea that survives even a Presidential order under article 359, on Makhan Singh v. State of Punjab, AIR 1964 SC 381. The detention is liable to be quashed.

Change the facts. The grounds are served on 4 June, but the statements of the two witnesses referred to in them are not supplied. Sunita's representation says she cannot answer without knowing what they said.

Now? The obligation is to afford the earliest opportunity of making a representation, and a representation against conclusions whose basis is withheld is not an effective one. The failure is of the second limb of clause (5) rather than the first.

What it does NOT mean

It is not a right to a hearing before the order. A detention order is made without notice. Clause (5) operates after the detention.

It is not a right to the entire file. Khudiram Das distinguishes grounds from other particulars.

It is not satisfied by the statutory time limit alone. Service within fifteen days is not compliance unless the conditions for going beyond five are met.

The representation is not made to the Advisory Board in the first instance. Under section 8(1) of the National Security Act it is made to the appropriate Government, and under section 10 it is then placed before the Board along with the grounds.

Quick revision

• Article 22(5): communicate the grounds as soon as may be, and afford the earliest opportunity of making a representation against the order.
• NSA s.8(1): ordinarily not later than five days; in exceptional circumstances and for reasons recorded in writing, not later than fifteen days; representation to the appropriate Government. COFEPOSA s.3(3) is in the same terms and says it is for the purposes of article 22(5).
• Two separate obligations: the grounds, and the opportunity.
• Six judicial rules: not vague, irrelevant or non-existent; live link; application of mind; intelligible language; material supplied; representation decided without unexplained delay.
• Khudiram Das: grounds must be communicated, other particulars need not.

Test yourself

1. What are the two obligations in article 22(5)? To communicate the grounds on which the order has been made, as soon as may be, and to afford the detenu the earliest opportunity of making a representation against the order.

2. Within what period must the grounds be served under the National Security Act, and on what condition may the longer period be used? Ordinarily within five days; up to fifteen days only in exceptional circumstances and for reasons to be recorded in writing.

3. Is a detenu entitled to the whole file? No. On Khudiram Das he is entitled to the grounds and not to other particulars, such as the background of the authority's satisfaction or matter needed for the State Government's supervisory function.

4. To whom is the representation made under the National Security Act? To the appropriate Government under section 8(1); it is then placed before the Advisory Board with the grounds under section 10.

5. Grounds are served on the fourteenth day with no reasons recorded. Lawful? No. The fifteen day outer limit applies only where there are exceptional circumstances and reasons recorded in writing; without those, the ordinary five day rule governs and the service is out of time.