Delay in Deciding the Representation
Chapter Thirty-Four
Syllabus topic 2, "Preventive Detention and Indian Constitution"
Pages 153 to 156 of 657
In one line
The Government must decide the detenu's representation itself, quickly, and independently of whatever the Advisory Board is doing.
In the wording a student can write in an exam: the right in article 22(5) to make a representation carries with it a corresponding obligation on the appropriate Government to consider it, and four principles govern that obligation. The authority is bound to give the detenu an opportunity to make a representation and to consider it as early as possible. The Government's consideration of the representation is entirely independent of any action by the Advisory Board, including the Board's own consideration of it. There must be no delay in the matter of consideration, and although no hard and fast rule can be laid down about the time taken, the Government has to be vigilant, because the detenu's fundamental right to have his representation considered would be rendered meaningless if the Government dealt with the matter at its own sweet will and convenience. And the Government must form its own opinion and judgment on the representation before sending the case, with the representation, to the Advisory Board.
The leading case
Jayanarayan Sukul v. State of West Bengal, AIR 1970 SC 675.
Facts. On 5 June 1969 the District Magistrate, 24-Parganas, made an order under section 3(2) of the Preventive Detention Act 1950 detaining the petitioner. He was arrested and served with the grounds on 7 June. Information went to the State Government on 9 June. The Governor approved the order on 14 June and sent the report under section 3(4), with the grounds, to the Central Government. The petitioner made his representation to the State Government on 23 June. On 1 July the State Government placed his case, together with the representation, before the Advisory Board. The Board gave its opinion on 13 August that there was sufficient cause. On 19 August the State Government was said to have rejected the representation. On 26 August the Governor confirmed the order. The petitioner moved the Supreme Court under article 32, complaining that the State Government had not considered his representation with reasonable and proper expedition. The State said it had discharged its duty by rejecting the representation after considering the Board's report and after making its own enquiries through the Superintendent, Railway Police, whose report was somewhat delayed.
Held. Four principles govern the representation of detenus. First, the appropriate authority is bound to give the detenu an opportunity to make a representation and to consider it as early as possible. Secondly, the consideration of the representation by the appropriate authority is entirely independent of any action by the Advisory Board, including the Board's consideration of the representation. Thirdly, there should be no delay in the matter of consideration; although no hard and fast rule can be laid down as to the time taken, the Government has to be vigilant in the governance of the citizens, and the detenu's fundamental right to have his representation considered would be rendered meaningless if the Government did not deal with the matter expeditiously but at its own sweet will and convenience. Fourthly, the appropriate Government is to exercise its own opinion and judgment on the representation before sending the case, along with the representation, to the Advisory Board: if it decides to release the detenu it will not send the matter to the Board at all; if it does not, it sends the case and the representation; if the Board then expresses an opinion in favour of release the Government will release him; and if the Board expresses an opinion against release the Government may still exercise its power to release him. On the facts the State of West Bengal was held to have failed in its duty.
Delay in Deciding the Representation
Why it matters here. The fourth principle is the one students most often get wrong. The Government's duty is not to wait for the Board. It must decide first, and the Board's role is subsequent and separate.
The chain of decisions, and where delay can occur
A representation may have to be considered by more than one authority, and delay at any link is fatal. Under the National Security Act 1980 the chain is this.
The detaining officer, where the order was made under section 3(3). He must forthwith report to the State Government with the grounds under section 3(4), and the order lapses after twelve days, or twenty where the grounds were served after five days but within fifteen, unless approved.
The State Government. It approves under section 3(4), reports to the Central Government within seven days under section 3(5), decides the representation made to it under section 8(1), and places the grounds and the representation before the Advisory Board within three weeks under section 10.
The Advisory Board. It reports within seven weeks under section 11.
The Central Government. It has an independent power of revocation under section 14(1)(a) and (b), so a representation addressed to it must be decided by it.
The rule to state in an answer is that each authority with a power to revoke must apply its own mind to a representation addressed to it, and unexplained delay at any stage vitiates the detention.
How delay is measured
Four working propositions.
There is no fixed number of days. Sukul says so in terms: no hard and fast rule can be laid down.
The State must explain the time it took. The burden is on the State to account for each period, and a bare assertion that the file moved is not an explanation.
Delay in Deciding the Representation
Time spent on the Board is not an answer to delay by the Government. That is the second principle: the two are independent.
Time spent obtaining a report from a subordinate officer must itself be justified. In Sukul the State relied on an enquiry through the Superintendent, Railway Police, whose report was delayed, and that did not save it.
A worked example
Faisal is detained on 1 September and served with the grounds on 4 September. He makes a representation to the State Government on 10 September. The State Government places the grounds and the representation before the Advisory Board on 20 September. The Board reports on 15 October. The State Government rejects the representation on 20 October and confirms the detention on 22 October.
Is the reference to the Board in time? Yes. Three weeks from 1 September is 22 September.
Is the Board's report in time? Yes. Seven weeks from 1 September is 20 October.
Is the detention nonetheless bad? Yes, on Sukul's fourth principle. The State Government did not decide the representation before sending the case to the Board; it decided on 20 October, after the Board reported. The consideration is entirely independent of the Board's action, and the Government must form its own opinion first.
What if the Government had rejected the representation on 15 September and then sent the case on 20 September? That would satisfy the fourth principle, and the remaining question would be whether five days is an unexplained delay, which on these facts it plainly is not.
What it does NOT mean
It does not require a reasoned order on the representation. What is required is that the mind be applied and the decision taken with expedition.
It does not mean the Board's favourable report obliges the Government to detain. Under section 12(1) the Government may confirm, and Sukul's fourth principle records that even after an adverse opinion of the Board on release the Government may still release the detenu.
It is not confined to the State Government. Any authority with a power to revoke that receives a representation must decide it.
It does not make a short delay fatal by itself. What is fatal is delay that is unexplained, and the explanation is the State's to give.
Quick revision
- Jayanarayan Sukul v. State of West Bengal, AIR 1970 SC 675: four principles.
- One, opportunity to represent and consideration as early as possible.
- Two, the Government's consideration is entirely independent of any action by the Advisory Board.
- Three, no delay; no hard and fast rule as to time, but the Government must be vigilant, and the right would be meaningless if the Government acted at its own sweet will and convenience.
- Four, the Government must form its own opinion before sending the case and the representation to the Board; it may release without going to the Board; and even after an adverse Board opinion it may still release.
- The chain under the NSA: detaining officer's report and approval within twelve or twenty days; State Government's report to the Centre within seven days; representation decided; Board within three weeks; report within seven weeks; Central Government's independent power under section 14.
Delay in Deciding the Representation
Test yourself
1. Give the four principles in Sukul. Opportunity and early consideration; the Government's consideration is independent of the Board's; no delay, with vigilance required though no fixed period is laid down; and the Government must form its own opinion before sending the case to the Board.
2. Can the Government wait for the Advisory Board's report before deciding the representation? No. The two are entirely independent, and the Government must decide first.
3. Is there a fixed number of days within which a representation must be decided? No. No hard and fast rule can be laid down, but every period must be explained by the State.
4. If the Board reports against release, must the Government detain? No. Section 12(1) is permissive, and Sukul records that the Government may still release the detenu.
5. Which authorities may have to decide a representation under the National Security Act? The appropriate Government to which it is addressed under section 8(1), and the Central Government, which has an independent power of revocation under section 14, so that a representation addressed to it must be decided by it.
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.