Communicating the Grounds, and the Language the Detenu Understands
Chapter Thirty-Two
Syllabus topic 2, "Preventive Detention and Indian Constitution"
Pages 146 to 148 of 657
In one line
Grounds served in a language the detenu cannot read have not been communicated at all, and an oral translation is not enough.
In the wording a student can write in an exam: the obligation in article 22(5) to communicate the grounds means bringing home to the detenu effective knowledge of the facts and grounds on which the order is based. A person not conversant with the language in which the grounds are written must be given them in a language he can understand and, if he is literate, in a script he can read. A mere oral translation at the time of service does not satisfy the constitutional requirement.
The leading case
Harikisan v. State of Maharashtra, AIR 1962 SC 911.
Facts. The detenu was served with the order of detention and the grounds in English. He did not know English and asked for a translation in Hindi. The request was refused, on the grounds that the order and the grounds had been orally translated to him at the time they were served, and that English being still the official language, communication in English complied with the law and the Constitution.
Held. Article 22(5) was not complied with and the detention was illegal. Article 22(5) requires that the grounds be communicated to the detenu as soon as may be and that he be afforded the earliest opportunity of making a representation against the order. Communication in this context means bringing home to the detenu effective knowledge of the facts and grounds on which the order is based. To a person not conversant with the English language, in order to satisfy the requirement of the Constitution, the grounds must be given in a language which he can understand and in a script which he can read, if he is a literate person. A mere oral translation at the time of service is not enough.
Why it matters here. It fixes the meaning of "communicate" for the whole of article 22(5), and the phrase "effective knowledge" is the one to quote. It also disposes of the two arguments an authority usually makes: that an oral translation cures the defect, and that service in the official language is sufficient.
The rule confirmed and extended
Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728, applied the same principle to a COFEPOSA detention and added an important refinement: merely explaining the grounds of detention in the mother tongue of the detenu would not be sufficient compliance. The detenu is entitled to the grounds themselves in a language he understands, not to an explanation of them.
That case is worked more fully in [The Documents Relied On, and the Right to an Effective Representation], because its principal holding is about documents. What matters here is the language point and one further one: the Court also held that the rule of constructive res judicata does not bar a second habeas corpus petition under article 32 on fresh grounds not taken in the earlier one, because that rule of public policy is entirely inapplicable to illegal detentions.
Communicating the Grounds, and the Language the Detenu Understands
The elements of proper communication
Five, and they can be checked against any set of grounds.
- In writing. The grounds must be served as a document. Oral communication is not communication for this purpose.
- In a language the detenu understands. Not the official language, and not the language of the office that made the order.
- In a script he can read, if he is literate. A Hindi speaker who reads Devanagari is not served by a Hindi text in Roman script.
- Where he is illiterate, by a means that brings home effective knowledge. The rule is directed at knowledge, so for an illiterate detenu the requirement is met by whatever genuinely conveys the grounds, which will ordinarily mean reading them over and recording that it was done.
- Within the statutory time. Ordinarily five days under section 8(1) of the National Security Act 1980, and up to fifteen only in exceptional circumstances and for reasons recorded in writing.
A worked example
Ravindra, whose only language is Marathi and who reads Devanagari, is detained in Aurangabad. The grounds are served in English on the third day. A police constable reads them out in Marathi and records that he has done so. On the tenth day Ravindra asks for a Marathi text and is refused.
Was there communication? No. On Harikisan, an oral translation at the time of service is not enough, and a literate detenu is entitled to the grounds in a script he can read.
Does the refusal on the tenth day matter? Yes, twice over. It confirms that no written translation was given, and it means that the fifteen day outer limit in section 8(1) has passed without compliance.
What is the consequence? The breach is of the constitutional imperative in article 22(5) and of a mandatory provision of the Act. The detention is illegal, and it is a plea that survives even a Presidential order under article 359, on Makhan Singh v. State of Punjab, AIR 1964 SC 381.
Change one fact. Ravindra is illiterate. Now the requirement is that effective knowledge be brought home to him, and reading the grounds over in Marathi, with a contemporaneous record of it, may satisfy that. The rule is not a fetish about paper; it is about knowledge.
Why the rule is strict
Because the two obligations in article 22(5) are linked. The purpose of communicating the grounds is to enable the detenu to make a representation, and a representation he cannot make because he does not know what is alleged is no representation at all. A rule about language is therefore a rule about the effectiveness of the only remedy the clause gives him.
Communicating the Grounds, and the Language the Detenu Understands
That is also why the Court refused to treat the official language argument as an answer. The question is not what the State may lawfully write in; it is what this detenu can read.
What it does NOT mean
It does not require translation into every language the detenu knows. One language he understands, in a script he can read, is enough.
It does not require the order itself to be translated in every case. The constitutional obligation attaches to the grounds. In practice the order is served with them and is translated too.
It does not turn on the detenu's education. A detenu who is literate in Marathi and not in English is entitled to Marathi however well educated he is.
It is not cured by the detenu's lawyer understanding English. The right is the detenu's, and the representation is his.
Quick revision
- Article 22(5) "communicate" means bringing home to the detenu effective knowledge of the facts and grounds on which the order is based.
- Harikisan v. State of Maharashtra, AIR 1962 SC 911: grounds in English to a detenu who did not know English; oral translation at service and the official language argument both rejected; detention illegal.
- Literate detenu: a language he understands, in a script he can read.
- Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728: merely explaining the grounds in the mother tongue is not sufficient compliance; and constructive res judicata does not bar a fresh habeas corpus petition on new grounds.
- Time: ordinarily five days under NSA s.8(1), fifteen only on exceptional circumstances and recorded reasons.
Test yourself
1. What does "communicate" mean in article 22(5)? Bringing home to the detenu effective knowledge of the facts and grounds on which the order is based.
2. Is an oral translation at the time of service enough? No. Harikisan holds in terms that it is not.
3. Is service in the official language sufficient compliance? No. The question is what this detenu can understand and read, not what language the State may lawfully use.
4. What does Lallubhai Jogibhai Patel add about the mother tongue? That merely explaining the grounds in the detenu's mother tongue is not sufficient compliance; he is entitled to the grounds themselves in a language he understands.
5. Can a detenu file a second habeas corpus petition on a language point not taken in the first? Yes. On Lallubhai Jogibhai Patel, constructive res judicata is entirely inapplicable to an illegal detention and does not bar a fresh petition under article 32 on grounds not previously taken.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.