The Grounds of Detention: Vague, Irrelevant and Stale

Four things follow, and an answer should give all four.

1. The five defects are named. Vague, non-existent, not relevant, not connected or not proximately connected, and invalid for any other reason whatsoever. That last catch-all is very wide.

2. It applies only where there are two or more grounds. An order resting on a single ground that is defective still falls, because there is nothing to sever.

3. It operates by a deeming provision. The order is deemed to have been made separately on each ground, so the surviving ground is treated as an order in itself.

4. It applies to orders made before as well as after the 1984 amendment that inserted it, the section saying so in terms.

COFEPOSA 1974 contains a section 5A in the same terms, so the position under that Act is the same.

What section 5A does not cure

This is where the marks are, because the section is narrower than it looks.

It does not cure a defect that goes to the order rather than to a ground. If the authority was not empowered, or was not aware that the detenu was in custody, or never applied its mind at all, there is no valid satisfaction to sever.

It does not cure a breach of clause (5) in the communication. If the grounds were served late, or in a language the detenu cannot read, or without the documents relied on, the defect is in the communication and not in a ground, and severance is irrelevant.

It does not save an order where the surviving ground would not have produced the satisfaction. The deeming provision treats the order as made separately on each ground, which presupposes that the surviving ground is itself capable of supporting an order. A ground disclosing only a law and order problem cannot support an order made on the public order head, however many other grounds there are.

It does not apply where the statute has no such section. A State detention Act without an equivalent provision is governed by the old rule.

A worked example

The order against Prakash is made under section 3(2) of the National Security Act to prevent acts prejudicial to the maintenance of public order. The grounds served on him are four in number.

Ground 1. "The detenu is a person of criminal tendencies." Vague. It tells him nothing to answer.

Ground 2. A dispute with a neighbour over a boundary wall in 2021, in which he assaulted the neighbour. Irrelevant to public order, and stale.

Ground 3. An allegation that he led a mob that attacked a place of worship in March 2026, causing the locality to shut for two days. Good on its face.

Ground 4. An incident that the police record itself shows involved a different person of the same name. Non-existent as against him.

Result under the old rule. The whole order falls, because three grounds are bad and the composite satisfaction cannot be dissected.

Result under section 5A. The order is deemed made separately on each ground. Grounds 1, 2 and 4 fall away; ground 3 stands, and the order survives on it.

But two questions remain. Was the satisfaction genuinely formed, given that three of the four grounds were defective? A file of that quality invites the inference of non-application of mind. And does ground 3 by itself disclose a public order problem? On the concentric circles test it does, because the locality changed its behaviour.

Distinctions

What it does NOT mean

It does not mean vagueness no longer matters. A single vague ground in an order resting on that ground alone is still fatal, and vagueness across all the grounds shows there was nothing to be satisfied about.

It does not reverse the burden. The State must still show that the surviving ground is good.

It is not a general validating provision. It names five defects in grounds and does nothing else.

It is not in every detention statute. Check the Act.

Quick revision

• Defective grounds: vague, irrelevant, non-existent; also stale and showing no application of mind, treated separately.
• Old rule: one bad ground vitiates the whole order, because a composite subjective satisfaction cannot be dissected.
• NSA s.5A and COFEPOSA s.5A: where an order is made on two or more grounds it is deemed made separately on each, and is not invalid merely because one or some are vague, non-existent, not relevant, not connected or not proximately connected, or invalid for any other reason whatsoever.
• Section 5A does not cure a defect in the order itself or in the communication, and does not save an order whose surviving ground could not have supported it.
• A single-ground order remains subject to the old position, because there is nothing to sever.

Test yourself

1. What was the old rule about one bad ground? That it vitiated the entire order, because the satisfaction was composite and a court could not say how far the invalid ground had contributed to it.

2. What does section 5A of the National Security Act do? It deems an order made on two or more grounds to have been made separately on each, so that the order is not invalid merely because one or some of the grounds are vague, non-existent, not relevant, not connected or not proximately connected with the person, or invalid for any other reason whatsoever.

3. Does section 5A save an order resting on a single defective ground? No. It applies only where the order rests on more than one ground; where there is a single ground there is nothing to sever.

4. Does section 5A cure late service of the grounds? No. That is a defect in the communication under article 22(5) and section 8, not a defect in a ground.

5. Three of four grounds are bad and one is good. What two questions still arise? Whether the satisfaction was genuinely formed at all, given the quality of the material, and whether the surviving ground by itself falls within the statutory purpose on which the order was made.