S.B. Majmudar, J.@mdashA Division Bench of this Court consisting of two of us (S.B. Majmudar and B.S. Kapadia, JJ.) by an order dated 20th January 1988 referred the following question for decision of a larger bench:
Whether Rule 13(xi)of the Gujarat Conditions of Detention (PASA) Order 1985 as it stood at the relevant time, to the extent to which it provided interview to the detenu by a legal practitioner subject to the permission of the State Government was unconstitutional and invalid, on the ground that it violated Articles 14, 21 and 22(5) of the Constitution of India.
Accordingly, papers of this matter were placed before the learned Chief Justice for making reference to the larger bench. This matter has now been placed before us for resolving the aforesaid question.
2. In order to appreciate the contours of controversy centering round the aforesaid question, it will be necessary to have a quick glance at a few introductory facts leading to this Reference.
3. Introductory facts:-The petitioner who is the detenu under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as ''PASA'') has challenged the order of his detention dated 1-7-1987 passed by the Commissioner of Police, Baroda city on diverse grounds. By an amendment granted to the petition at para 18A, he has challenged the vires of Rule 13, Sub-clause (xi) of the Gujarat Conditions of Detention (PAS A) Order 1985. The said subrclause which existed at the relevant time read as under:
(xi) In addition to the interviews permissible under the preceding provisions of this clause, a detenu may if he so desires with the permission of the Government : be allowed to have only one interview with a legal practitioner or any other person of his choice and at his cost for the purpose of drafting a representation against the order of detention. Such interview shall be conducted in accordance with the provisions of this Clause as regards place, duration and conditions of the interviews, and the proceedings shall be strictly confined to the object for which the interview is granted.
(underlining ours)
It may be mentioned at this stage that by a Government circular dated 26th November 1987, the said Sub-clause has now been amended and the existing provision regarding grant of interview to the detenu with legal adviser or legal practitioner has been liberalised. The relevant provision of the said circular reads as under:
Under the existing provision of Sub-clauses (ix) and (xi) of Rule 13 of the Gujarat Conditions of Detention (PASA) Order, 1985, a detenu is allowed interview with the legal adviser/legal practitioner with the permission of the State Government. Government is pleased to direct that a detenu under the Gujarat Prevention of Anti-Social Activities Act, 1985, may be granted interview with his legal adviser/legal practitioner at any reasonable hour during the day after taking the appointment from the Superintendent of Jail where the detenu is lodged. This interview should be granted for the purpose enumerated in Sub-clauses (ix) and (xi) of Rule 13 of the Gujarat Conditions of Detention (PASA) Order, 1985. Prior permission of the State Government or the detaining authority is not necessary, for granting interview with the legal adviser/legal practitioner. The jail authorities should grant such interviews without avoidable delay.
Despite this development, the challenge to the vires of the then existing Sub-clause(xi) of I Rule 13 has been pressed in service by the learned Advocate for the petitioner for the simple reason that the order of detention has been passed prior to 26-11-1987 and according to him, the detenu was not permitted by the jailer to consult his advocate for the purpose of drafting representation on account of the provision of the then existing Sub-clause (xi) of Rule 13 and that his advocate was told to get permission of the State Government before he could get interview with the detenu for that purpose and that has affected the detenu''s right of effectively representing against the detention order at least for the purpose of getting it revoked. That is how this question survives for consideration in the present Reference.
4. This petition earlier reached final hearing before the aforesaid Division Bench. Before the Division Bench, it was contended by the learned Advocate for the petitioner that the provision regarding obtaining of permission of the State Government before granting interview with legal adviser practitioner to the detenu as mentioned in the then Sub-clause (xi) of Rule 13 was violative of the constitutional right guaranteed to the detenu under Articles 14, 21 and 22(5) of the Constitution; while on the other hand, the learned Advocate General who appeared for the respondents submitted that the detenu under the preventive detention laws has no such right. During the course of arguments before the Division Bench, three judgments, of the Supreme Court were pressed in service by the respective parties. They are:
(i) Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746 : 1981 Cri LJ 306
(ii)
(iii)
The Division Bench referred the aforesaid question for decision of a larger bench looking to the importance of the question raised for consideration.
5. Statutory settings:- It would be necessary to refer to the relevant statutory provisions at the outset as it is in the background of these provisions that this question will have to be decided. Subsection (1) of Section 3 of PASA empowers the State Government to make an order directing that a person be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. Under Sub-section (2) of the said section, an authorised officer under the circumstances mentioned in the said provision can also pass such an order. Section 5 of the PASA provides that every person in respect of whom a detention order has been made shall be liable (a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the Government may, by general or special order, specify. In exercise of the said power, the State of Gujarat made the Gujarat Conditions of Detention (PASA) Order 1985 on 29th May 1985. We are concerned with Rule 13 of the said Order which deals with interviews to be granted to the PASA detenu. It would be necessary to extract the whole of this Rule 13 with its Sub-clauses running from (x) to (xi).
13(i) No detenu shall be permitted to have an interview
(a) with any person other than a police officer or relatives except with the written order of the Government in the Home Department, and
(b) with a police officer, or family members and relatives,- except with the written order of the Superintendent of Jail in which the security prisoner is detained under an order made u/s 5 of the Act.
(ii) A detenu may be allowed only two interviews per month with family members and relatives under paragraph (b) of Sub-clause (i).
(iii) Not more than three visitors shall be allowed to remain present simultaneously at any one interview, except in the case of family members and relatives when the number may be increased to five.
(iv) Applications for interview
(a) from persons other than a police officer or family members and relatives shall be made to the Government in the Home Department, and
(b) from a police officer family members and relatives shall be made to the Superintendent of Jail referred to in paragraph (b) of Sub-clause (i) in form ''A'' appended to this order;
(v) The Superintendent or the Commissioner shall appoint the time, place and duration of each interview, and shall not ordinarily allow any interview to continue for more than half an hour with a family member and relative. The duration of an interview with a lawyer when permitted may, however, extend up to one hour.
(vi) Every interview shall take place in the presence and within the hearing of an officer attached to the place of detention or a police officer who may terminate it at any time, if in his opinion, the conversation is detrimental to the public interest or safety.
(vii) After the interview is over or terminated, the officer present at the interview shall warn both the detenu and the visitor that future interviews are liable to be prohibited, if the visitor indulges in any publicity on behalf of the detenu.
(viii) Government may, for special reasons, permit additional interviews in excess of the number permissible under Sub-clause (2).
(ix) In addition to the interviews permissible under the preceding provisions of this clause, a detenu may, with the permission of the State Government, be allowed only one interview with legal advisers in connection with any court matter against him. All such interviews shall take place on the premises in which the detenu is confined and shall be subject to such conditions and restrictions as the Commissioner or the Superintendent may consider necessary to ensure security and prevent the passing of unauthorised communications unconnected with the case relating to which the interview is granted.
(x) In addition to the interviews permissible -under the preceding provisions of this clause, a detenu who wishes to stand as a candidate for any election to Parliament or State Legislature shall be allowed by weekly interviews with his election agent up to the date fixed for taking the poll and the Government may allow any additional interviews to the detenu with his election agent for the purposes of his candidature at the election.
(xi) It is already extracted earlier.
As already mentioned earlier, Sub-clauses (ix) and (xi) of Rule 13 were amended by Government circular dated 26th November 1987. In the present proceedings, we are concerned with unamended Sub-clauses (ix) and (xi) of Rule 13 of PASA order that were holding the field prior to 26-11-1987. Legality of the then existing Sub-clause (xi) of Rule 13 is brought in challenge before us by the learned Advocate for the petitioner on diverse grounds.
6. Rival contention:- Mr. Patel for the petitioner vehemently submitted, placing strong reliance on the decision of the Supreme Court in
7. Discussion on the point : The aforesaid rival contentions clearly bring in sharp focus the nature of controversy between the parties centering round the referred question, If
8. It becomes, therefore, necessary for us to closely examine the aforesaid three decisions of the Supreme Court and to cull out their correct ratio. But before we proceed to do so, we must remind ourselves of the settled legal position in connection with the guidelines which should inform the court which is entrusted with the task of culling out the ratio of the decisions of the court, especially decisions of the Supreme Court. In the Full Bench decision of this Court in special criminal applications Nos. 240 and 254 of 1987 decided by majority on 29th January 1988, this very question was considered by the majority. On this aspect, there was no dissent from the third learned Judge, R.J. Shah, J.R.C. Mankad, J. speaking for majority made the following pertinent observations at pages 39 to 41 of the judgment, while considering the question as to what was the correct ratio of the decision of the Supreme Court in
It is a settled principle that it is not everything said by the Supreme Court in its judgment which is binding as law declared by the Supreme Court. What is considered binding to all the courts is ratio decidendi of the decision which is to be gathered from the statements of principles of law applicable to the legal problems disclosed by the facts of the case decided by the Supreme Court (vide Calico Mills v. Union of India 1983 (1) 24 Guj LR1 : 1 983 Tax LR NOC 126 (FB)). In Dalbir Singh v. State of Punjab AIR 1979 SC 1384 at Pp. 1390 and 1391 : 1979 Cri LJ 1058 at Pp. 1063, 1064 Sen J. speaking for the Supreme Court has observed as under :
According to the well settled theory of precedents every decision contains three basic ingredients:
(i) findings of material facts, direct and inferential An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of (i) and (ii) above.
For the purposes of the parties themselves and their privies, ingredient No. (iii) is the material element is the decision for it determines finally their rights and liabilities in relation to the subject matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purposes of the doctrine of precedents, ingredient No. (ii) is the vital element in the decision. This indeed is the ratio decidendi. (5) It is not every thing said by judge when giving judgment that constitutes a precedent.
(Emphasis added)
As observed in Calico Mills v. Union of India, (supra) the Supreme Court has also uttered a warning to the effect that the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and confine such observations even though expressed in broad terms in the general compass of the questions before him (vide
In this connection, we may also profitably refer to the decisions of the Supreme Court. In the case of
It is elementary that what is binding on the court in a subsequent case is not the conclusion arrived at in a previous decision but the ratio of that decision, for it is the ratio which binds as a precedent and not the conclusion.
9. In the case
Before embarking upon the examination of these decisions we should bear in mind that what is under consideration is not a statute or a legislation but a decision of the court. A decision ordinarily is a decision on the case before the court while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. Hence, while applying the decision to a later case, the court which is dealing with it should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the question involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation.
10. In the light of the aforesaid settled legal position, we would now proceed to deal with the aforesaid three decisions of the Supreme Court with a view to finding out as to what are the exact ratio of these decisions and what has been ruled by the Supreme Court therein. Supreme Court decision in
(i) interview with legal adviser:- Interview with the legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like, may be allowed by prior appointment, in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who sponsers the case for detention". It is not necessary for us to mention the rule regarding interview with family members, as we are not concerned with such provision. It becomes, therefore, clear that so far as interview with legal adviser/legal practitioner was concerned, the impugned provision of the Delhi Rule was challenged in the light of the grievance of the detenu that she found it difficult to consult her advocate for the purpose of defending her in pending criminal case. It was not the grievance of the detenu in Francis''s case that there was any rule which prohibited consultation with the advocate for drafting representation or in any case restricted such right, and that such restriction whittled down her right of representation under Article 22(5) of the Constitution or was otherwise violative of constitutional provisions of Articles 14 and 21. In short, the question which is. posed for our consideration was never posed for consideration of the Supreme Court in the said case. Still, however, there are certain observations of the Supreme Court in the aforesaid decision which have been vehemently relied upon by Mr. Patel in support of his contention for challenging the impugned provision of the rule. The observations on which strong reliance has been placed are found at paras 9 to 11 of the report. It becomes, therefore, necessary to quote these observations in extenso at this stage:
9. Now obviously when an undertrial prisoner is granted the facility of interviews with relatives and friends twice in a week under Rule 559A and a convicted prisoner is permitted to have interviews with his relative and friends once in a week under Rule 550, it is difficult to understand how Sub-clause (ii) of clause 3(b) of the Conditions of Detention Order, which restricts the interview only to one in a month in case of a detenu can possibly be regarded as reasonable and non-arbitrary, particularly when a detenu stands on a higher pedestal than an undertrial prisoner or a convict and, as held by this Court in
10. The same reasoning must also result in invalidation of Sub-clause (i) of clause 3(b) of the Conditions of Detention Order which prescribes that a detenu can have interview with a legal adviser only after obtaining prior permission of the District Magistrate, Delhi and the interview has to take place in the presence of officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the case for detention. The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding, civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established'' by a valid law. A prison regulation may, therefore, regulate the right of detenu to have interview with a lagal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Articles 14 and 21. Now in the present case, the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate, Delhi This would obviously cause great hardship and inconvenience because the legal adviser would have to apply to the District Magistrate, Delhi well in advance and then also, the time fixed by the District Magistrate, Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and in that event, from a practical point of view the right to consult a legal adviser would be rendered illusory. Moreover, the interview must take place in the presence of an officer of Customs/ Central Excise/ Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the detention and this would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview, the district Magistrate, Delhi would have to fix the time for the interview in consultation with the Collector of Customs/Central Excise or the Deputy Director of Enforcement and it may become difficult to synchronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not, for any reason attend at the appointed time, as seems to have happened on quite a few occasions in the case of the petitioner, the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the District Magistrate, Delhi would have to be gone through once again. We may point out that no satisfactory explanation has been given on behalf of the respondents disclosing the rationale of this requirement.
11. We are therefore of the view that Sub-clause (i) of clause 3(b) regulating the right of a detenu to have interview w ith a legal adviser of his choice is violative of Articles 14 and 21 and must be held to be unconstitutional and void. We think that it would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonble hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any avoidable delay. We may add that the interview need not necessarily take place in the presence of a nominated officer of Customs/Central Excise/Enforcement but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview. Then such officer and if his presence cannot be so secured, then any other jail official may, if thought necessary, watch the interview but hot so as to be within hearing distance of the detenu and the legal adviser."
Now, these observations will have to be read in the light of the short question posed for consideration of the Supreme Court to the effect whether the detenu had a constitutional right of consulting her advocate for being defended in pending criminal case and whether the impugned provision of the Delhi Rule violated the said right. While deciding that question, wider observations are no doubt made laying down the right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding, civil or criminal, which is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just proeedure established by a valid law and that a prison regulation may regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such,an interview and if it does so, it would be violative of Articles 14 and 21 of the Constitution. These observations, however, will have to be read in the light of the actual question which was posed for consideration in
11. It has to be appreciated that as mentioned in para 1 of the report in
12. The aforesaid view of ours gets further fortified by a decision of three Judges'' bench of the Supreme Court in
Now if the representation has to be a written representation, there is no question of hearing any one much less a lawyer. Reliance was, however, placed on
''3. The conditions of detention in respect of classification and interviews shall be as under:
(b) Interviews : subject to the direction issued by the Administrator from time to time, permission for the grant of interviews with a detenu shall be granted by the District Magistrate, Delhi as under:
(i) Interview with legal adviser:
Interview with legal adviser in connection with defence of a detenu in criminal case or in regard to writ petitions and the like may be allowed by prior appointment, in the presence of an officer of Customs/Central Excise/ Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who sponsors the case for detention.
(ii) Interview with family members:
A monthly interview may be permitted for members of the family consisting of wife, children or parent of the detenu....
The contention was that the condition in clause 3(b)(ii) which restricts the interview to only one in a month in case of a detenu is unreasonable and arbitrary when contrasted with an undertrial prisoner who was entitled to the facility of interviews with friends and relatives twice in a week and even though a detenu stands on a higher pedestal than an undertrial prisoner or a convict, the limitation of interview to one in a month is utterly arbitrary. This contention found favour with the court on the ground that restrictions placed on a detenu must, consistent with the effectiveness of detention, be minimal (see
(Emphasis supplied)
In view of the aforesaid authoritative pronouncement of the Supreme Court on the nature of decision in Francis''s case(supra), it has to be held that the observations contained in Francis''s case (supra) were of obiter nature insofar as they decided about the detenu''s right to consult his advocate for the purpose of drafting representation for challenging the detention order.
13. However, Mr. H.L. Patel for the petitioner was right when he contended that even obiter observations of the Supreme Court are binding on this Court. In this connection, the learned Advocate General for the respondents on the other hand submitted that there are two later decisions of the Supreme Court in
14. Supreme Court decision in
In Francis'' Coralie Mullin AIR 1981 SC 746 : 1981 Cri LJ 306 the petitioner while in detention wanted to have an interview with her lawyer, which was rendered almost impossible by reason of the stringent provisions of CL 3(b)(i) of the ''Conditions of Detention'' formulated by the Delhi Administration. In a petition filed in this Court to challenge the aforesaid clause, inter alia, it was held by this Court that the clause was void, since it violated Arts. 14 and 21 by its discriminatory nature and unreasonableness. The court directed that the detenu should he permitted to have an interview with her legal adviser at any reasonable hour during the day after taking an appointment from the Superintendent of the Jail and that the interview need not necessarily take place in the presence of an officer of the Customs or Central Excise Department. The court also directed that the officer concerned may watch the interview but not so as to be within the hearing distance of the detenu and the legal adviser. This decision has no bearing on the point which arises before us, since the limited question which was involved in that case was whether the procedure prescribed by clause (3), governing the interviews which a detenu may have with his legal adviser, was reasonable. The court was not called upon to consider the question as regards the right of a detenu to be represented by a legal practitioner before the Advisory Board. We would, however, like to say that by this judgment, we are neither affirming nor disapproving of the decision in Francis Coralie Mullin to the effect that the detenu has a right to consult a lawyer of his choice for the purpose of preparing his representation, advising him as to how he should defend himself before the Advisory Board and preparing and filing a habeas corpus petition or other proceedings for securing his release.
In view of what is stated by the constitution Bench in A.K. Roy''s case (supra) in connection with Francis''s case (supra), it becomes clear that the constitution Bench left the said case as it was and did not expressly or by necessary implication overrule the same. There are wide observations in Francis'' case (supra) to the effect that detenu has right to consult a lawyer of his choice for the purpose of preparing representation, which as seen earlier, were of obiter nature and remained untouched by the ratio in A.K. Roy''s case (supra). Still, however, the said judgment contained, on the scheme of Articles 14, 21 and 22 of the Constitution read in the light of Article 22(3)(b) of the Constitution, certain pertinent observations in other parts of the. report which clearly go to indicate that the constitution Bench was of the view that the detenu will not have a constitutional right to consult his advocate even for the purpose of drafting a representation. In fact, the said observations cannot stand conjointly with the observations to the contrary in Francis''s case which we have extracted earlier and observations in Francis''s case clearly appear to be in conflict with the observations of the constitution Bench in the extracted hereinafter paras. Hence, it can easily be seen that obiter observations in A.K. Roy''s case (supra) as made by the constitution Bench are in conflict with obiter observations in Francis''s case (supra), so far as question of detenu''s constitutional right to consult advocate of his choice for the purpose of drafting representation is concerned. These relevant observations though obiter in nature, as found in A.K. Roy''s case (supra) are as under:
On a combined reading of clauses (1) and (3)(b) of Article 22, it is clear that the right to consult and to be defended by a legal practitioner of one''s choice, which is conferred by Clause (1), is denied by Clause (3)(b) to a person who is detained under any law providing for preventive detention. Thus, according to the express intendment of the Constitution itself, no person who is detained under any law which provides for preventive detention, can claim the right to consult a legal practitioner of his choice, or to be defended by him. In view of this, it seems to us difficult to hold, by the application of abstract, general principles or on a priori considerations that the detenu has the right of being represented by a legal practitioner in the proceedings before the Advisory Board. Since the Constitution, as originally enacted, itself contemplates that such a right should not be made available to a detenu, it cannot be said that the denial of the said right is unfair, unjust or unreasonable. It is indeed true to say, after the decision in the
It is contended by Shri Jethmalani that the provision contained in Clause (3)(b) of Article 22 is limited to the right which is specifically conferred by Clause (1) of that article and therefore, if the right to legal representation is available to the detenu apart from the provisions of Article 22(1), that right cannot be denied to him by reason of the exclusionary provisions contained in Article 22(3)(b). Counsel says that the right of legal representation arises out of the provisions of Articles 19, 21 and 22(5), and therefore, nothing said in Article 22(3)(b) can affect that right. In a sense, we have already answered this contention because, what that contention implies is that the denial of the right of legal representation to the detenu in the proceedings before the Advisory Board is an unreasonable restriction, within the meaning of Article 19(1) on the rights conferred by that article. If the yardstick of reasonableness is provided by Article 22(3), which is as much a part of the Constitution as originally enacted as Arts. 19, 21 and 22(5), it would be difficult to hold that the denial of the particular right introduces an element of unfairness, unjustness or unreasonableness in the procedure of the Advisory Boards. It would be stretching the language of Arts. 19 and 21 a little too far to hold that what is regarded as reasonable by Article 22(3)(b) must be regarded as unreasonable within the meaning of those articles. For illustrating this {Joint, we may take the example of a law which provides that an enemy alien need not be produced before a Magistrate within twenty-four hours of his arrest or detention in custody. If the right of production before the Magistrate within 24 hours of the arrest is expressly denied to the enemy alien by Article 22(3)(a), it would be impossible to hold that the said right is nevertheless available to him by reason of the provisions contained in Article 21. The reason is, that the answer to the question whether the procedure established by law for depriving an enemy alien of his personal liberty is fair or just is provided by the Constitution itself through the provisions of Article 22(3)(a). What that provision considers fair, just and reasonable, cannot, for the purposes of Article 21, be regarded as unfair, unjust or unreasonable.
To read the right of legal representation in Article 22(5) is straining the language of that article. Clause (5) confers upon the detenu the right to be informed of the grounds of detention and the right to be afforded the earliest opportunity of making a representation against the order of detention. That right has undoubtedly to be effective, but it does not carry with it the right to be represented by a legal practitioner before the Advisory Board merely because by Section 10 of the National Security Act, the representation made by the detenu is required to be forwarded to the Advisory Board for its consideration. If anything, the effect of Section 11(4) of the Act, which conforms to Article 22(3)(b), is that the detenu cannot appear before the Advisory Board through a legal practitioner. The written representation of the detenu does not have to be expatiated upon by a legal practitioner.
(Emphasis supplied)
It is in the light of the aforesaid observations on the constitutional scheme of relevant Articles that the constitution Bench ultimately reached its conclusion in para 94 of the report to the effect that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It becomes at once clear, when the aforesaid pertinent observations of the constitution Bench in A.K. Roy''s case (supra) on the constitutional right of detenu to consult advocate of his choice, are kept in view that they are clearly in conflict with the observations in Francis''s case (supra), and the observations in both these cases cannot be harmoniously reconciled and they cut across each other.
15. That takes us to the consideration of the last relevant decision of the Supreme Court in
Whether the detenu has a right to appear before the the detaining authority through lawyer.
While answering this question, the constitutional scheme was examined by the judgment in the light of the statutory provisions of Section 8 of the COFEPOSA and also in the light of the constitutional Bench decision in
Article 22(1) and (2) confers fundamental right of protection against arrest and detention in certain cases. Sub-Article (1) enjoins a duty on the person arresting any person to inform the person arrested, as soon as may be, of the grounds for such arrest before detaining him in custody and such detained person shall not be denied the right to consult and to be defended by a legal practitioner, of his choice. Sub-Article (2) enjoins a duty on the person arresting and detaining any one to produce him before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of whe Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. These two fundamental rights, namely, right to be informed of the grounds of detention at the time of arrest and the right to consult and be defended by a lawyer of his choice, and any detention beyond the period of 24 hours plus the time taken in the journey, unless authorised by a Magistrate to be illegal would have also been available to any one detained under the preventive detention laws but for sub-Article (3), Sub-Article (3) provides that nothing in clauses (1) and (2) shall apply - (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. As a necessary corollary, any law providing for preventive detention would not be unconstitutional even if it contravenes Article 22(1)(2). In other words, a person detained under a law providing for preventive detention cannot claim as a matter of constitutional right to consult and be defended by a lawyer of his choice. Nor can he insist upon being produced before a Magistrate within 24 hours of his arrest.
Section 8 of the COFEPOSA shows as noticed above that a person against whom an order of detention has been made under the Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board. Assuming that the right to make a representation and the'' corresponding obligation cast on the detaining authority to consider the representation expeditiously is not a matter connected with the reference to the Advisory Board and that both are independent stages, it cannot be said that the refusal of the Administrator to hear the advocate of the detenu while considering the representation would be denial of common law right of the detenu to be represented by an agent. Article 22(5) which has provided a safeguard in the matter of preventive detention confers the right on the detenu and simultaneously casts an obligation on the detaining authority, as soon as may be, after the arrest to communicate to the detenu the grounds on which the order has been made and to afford the earliest opportunity of making a representation against the order. Representation is to be made by the detenu. Detenu is a person who is already deprived of his liberty. Giving the ordinary connotation to the expression ''earliest opportunity of making a representation'' as set out in sub-Article (5) would only imply that the person can send his written representation through the jail authorities. It would be open to him to send it by any other communicating media but the opportunity to make a representation does not comprehend as oral hearing. If it does, the detenu will have to be taken from the jail where he is detained to the detaining authority which in a given situation may not even be feasible and the delay in transit may be counter-productive to the earliest opportunity to be afforded to make a representation. It is, therefore, implicit in sub-Article (4) of Article 22 that the representation has to be a written representation communicated through the jail authorities or through any other mode which the detenu thinks fit of adopting but the detaining authority is under no obligation to grant any oral hearing at the time of considering the representation.
The aforesaid observations in Devji''s case (supra) leave no room for doubt that three learned Judges of the Supreme Court have in terms held that the detenu has no constitutional right of being represented by an advocate of his choice in support of his representation and while holding as aforesaid, have placed reliance on Article 22(3)(b) of the Constitution read with Article 21 thereof and held that the detenu has no constitutional right of either consulting his advocate or being represented by him in support of the representation before the detaining authority. Implicit in the aforesaid decision is the further penultimate decision that the detenu has no right to consult advocate of his choice for preparation of representation when it is held that even he has no ultimate right of getting the said representation supported by the advocate of his choice before the detaining authority. This is a clear ratio of the decision of the Supreme Court in Devji''s case.
16. In this connection, Mr. Patel for the petitioner submitted that even the aforesaid observations in
17. The decision of the Supreme Court in
18. If that is so, result is obvious. Obiter observations in Francis''s case of two member-judgment of the Supreme Court about detenu''s right to consult advocate for drafting representation get superseded by the direct, contrary ratio of the decision of the Supreme Court on the point in Devji''s case (supra) which was decided by a larger Bench of the Supreme Court. It is true that in para 14 of the report in Devji''s case, Francis''s case has been distinguished and its observations are held to be obiter but a conjoint reading of para 13 and earlier part of para 14 of the report in Devji''s case leaves no room for doubt that ratio of the decision in that case is directly in conflict with obiter observations in
19. Eyen assuming that we are wrong on our aforesaid conclusion on
20. We may now take stock of the situation. The impugned Rule 13(xi) imposing condition of obtaining prior permission of the State Government for granting interview of legal practitioner to the detenu for drafting the representation cannot be held to be hit by Article 14 and 21 of the Constitution as unreasonable and arbitrary from any standpoint. Following the decisions of the '' constitution Bench in
To -read the right of legal representation in Article 22(5) is straining the language of that Article, Clause (5) confers upon the detenu the right to be informed of the grounds of detention and the right to be afforded the earliest opportunity of making a representation against the order of detention. That right has undoubtedly to be effective, but it does not carry with it the right to be represented by a legal practitioner and that it is the detenu that has to file such representation.
It is easy to visualise that the detenu has to be afforded by the detaining authority earliest opportunity of making representation against the order of detention and for that purpose, he has to be supplied ground of detention '' along with supporting material and all other facilities so that he can avail of the earliest opportunity of making representation against the order of detention. Legal practitioner does not figure in the said requirement. On the contrary, because of Article 22(3)(b), consultation with him is ruled out. If that is so, at the stage of Article 22(5), consultation with him cannot be brought in by back door when the Constitution itself under the scheme of preventive detention envisaged by it has ruled out this requirement. It must, therefore, be held that any hedging of the right of detenu to consult his advocate for the purpose of preparation of representation does not amount to violation of any of the provisions of Article 22(5). In fact as ruled by the aforesaid two decisions of the Supreme Court, he has no such constitutional right. However, if by any statutory provision, such right is given to him, well and good. He will be able to avail of that statutory right subject to the fetters imposed by the legislature or rule making authority, as the case may be, granting such right to the detenu. It also cannot be said that hedging of this right by subjecting it to the previous permission of the State Government is in any way arbitrary, unreasonable or unjust as discussed earlier. Even that apart, it is interesting to note that on the scheme of relevant Rule 13 and its sub-paras, it becomes at once clear that there is no fetter on the right of the detenu''s advocate to ask for any number of interviews with the detenu after following the procedure laid down by Rule 13(l)(i) and (iv)(a). What clause (xi) provides is for additional interview which should be granted to the detenu if he so desires with the permission of the Government to enable him to consult his legal practitioner for drafting his representation. This is an additional right which is for the benefit of the detenu and mere provision of getting permission of the State Government in that connection cannot be said to be unreasonable from any angle. It is also interesting to note that there is no provision in the Rule 13 or other rules laying down guidelines for the State Government indicating the circumstances in which such application can be rejected, save and except in Rule 13(vi) and (vii). We are not concerned with such contingencies in the present case so far as condition of clause (xi) of Rule 13 is concerned, as the latter deals with requirement of obtaining previous permission for taking solitary interview with the Advocate at the request of the detenu for drafting representation. It is, therefore, easy to visualise that in normal and ordinary circumstances, such application for permission when made would obviously be granted as a matter of course. Only in exceptional cases, such permission may be rejected and that too it has to be done on the basis of certain relevant reasons which can be pointed out to the court as and when rejection of such permission is challenged on the ground of being arbitrary and unreasonable. Leaving aside such exceptional cases, scheme of the rules suggests that applying for permission of the State Govt, for being allowed interview with legal practitioner under clause (xi) is a mere formality and a routine procedural provision. The learned Advocate General for the State submitted to us that such permissions when asked for were normally granted and, therefore, the apprehension of the detenu that such application would be rejected arbitrarily is uncalled for. In any case, such provision for asking permission of the State Govt. for such interview cannot be treated by itself as unreasonable from any yardstick particularly when it is not violative of Article 21 of the Constitution. The provision cannot be found fault with. However, if any action under the provision on the facts of a given case if found to be arbitrary or illegal, that can certainly be struck down. But in that case, action would be bad and not section or provision. We do not find anything arbitrary or illegal per se in the said provision for seeking permission of the Government before being granted additional interview with the legal adviser for the purpose of drafting representation. Even subsequent amendment to clauses (iv) and (xi) clearly brings out the intention of the rule making authority that it never wanted to lay down any insurmountable fetters on the statutory right of the detenu in getting such facility and it had treated it as a mere formality and what was implicit before, was made explicit by the Government resolution of 26-11-1987.
21. Mr. Patel for the petitioner vehemently submitted that the impugned rule is discriminatory and violative of Article 14 inasmuch as detenus under National Security Act who are also dangerous persons have been given absolute right to consult advocate of their choice subject to permission only of the jailor and that only PASA detenus are discriminated against. It is not possible to agree with this contention. The scheme of National Security Act and other preventive detention laws are different in nature as compared to the scheme of PASA, so far as persons to be detained thereunder are concerned. Under NSA, one who disturbs public order can be detained being a dangerous person. Under PASA apart from dangerous persons, bootleggers, property grabbers, drug offenders and immoral traffic offenders also can be detained if their activities are covered by the deeming fiction regarding, disturbance of public order as laid down under i the Act, apart from actual disturbance of public order as per the settled legal connotation of that phrase. In any case, PASA detenus have been treated to be a class by themselves under the impugned rule. We, cannot decide the constitutionality of the impugned rule by comparing it with the scheme of other rules governing detention of detenus kept in incarceration under different Acts. So far as the scheme of the present rules is concerned, we do not find it to be discriminatory or arbitrary, unjust or unreasonable. In this connection, we may refer to a recent decision of the Supreme Court in the case of Sant Lal Bharti v. State of Punjab, Civil Appeal No. 1637 of 1987 decided by
Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory or different. Nor does it contemplate a law of the Centre or of the State dealing with similar subject by a process of comparative study of the provisions of two enactments. The source of authority for the two statutes being different, Article 14 can have no application.
On a parity of reasoning, it must, therefore, be held that vires of rules laying down conditions of detention under PASA cannot be decided by comparing them with the conditions of detention as framed under NSA and Article 14 would be out of picture in such a challenge.
22. Mr, Patel lastly submitted that the impugned clause requires prior permission of the State Government before the detenu can get an interview with an advocate/legal adviser and that too only one interview for preparing the representation. That if such interview was to be obtained from the jailor himself during convenient hours, it would not entail any delay but to ask the detenu to go to the State Government for obtaining such permission and then to approach the jailor armed with such permission to get interview with his lawyer would itself entail loss of number of days and it is the likelihood of this delay which will clearly violate Article 22(5) of the Constitution and even on that ground, the impugned condition in the said-clause must be struck down. It is not possible to agree with the said contention. It is true that detenu who may be detained in any of the jails in Gujarat would get immediate interview with his advocate if only jailor had to give such permission and it would be formal in nature and instead, if he has to apply through jailor for such permission to the State Government functioning at Gandhinagar, the process may entail loss of a few days. But that by itself, in our opinion, would not make the impugned provision violative of Article 22(5) or even otherwise unreasonable, unjust and unfair as submitted by Mr. Patel. The reason is obvious. Under Article 22(5), the detenu is to be afforded an earliest opportunity of making representation against the detention order after supplying him grounds of detention. Earliest opportunity would not mean immediate opportunity without loss of even a moment. It would all depend upon the facts of each case whether opportunity afforded in a given case was earliest opportunity or not and whether constitutional rights of the detenu under Article 22(5) was violated or not. Article 22(5) does not fix any period during which grounds are to be supplied to the detenu. But by judicial interpretation, it has been held that grounds have to be supplied at the earliest so that the detenu can be said to have been afforded earliest opportunity of making representation after considering the grounds of detention. It is axiomatic that representation can normally be made only after grounds are perused by the detenu and/or his legal adviser, whoever he may be and without looking at the grounds, it may not be possible for the detenu to effectively represent against his detention in most of the cases. However, in this connection, Section 9(1) of PASA Act is worth noting. It has been laid down therein that "When a person is detained in pursuance of a detention order the authority making the order shall, as soon as may be but not later than seven days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government". This provision obviously is enacted to be consistent with the constitutional right of the detenu under Article 22(5), Still the legislature has contemplated upper limit of supplying grounds within 7 days. It is not as if that the detaining authority armed with grounds should necessarily delay supplying the grounds to the detenu till 7 days, but the grounds must be supplied at the earliest to the detenu and preferably with the order of detention itself. But if in a given case, in circumstances of exceptional nature when the grounds may be bulky in nature and supporting material may be bulky in nature and preparation of number of copies may take some time when number of detenus may be involved in the same incidents or question of translation of the bulky material in language known to the detenu may take some time and in diverse other similar situations of exceptional nature actual supplying of grounds may legitimately take some time. For that purpose, the legislature has provided upper limit of 7 days. It goes without saying that grounds and supporting material must be in existence on the date of detention order but it is only supplying of copies thereof to the detenu that may take some time because of the circumstances beyond the control of the detaining authority, and to facilitate the same, in such exceptional circumstances, the legislature has given latitude to the detaining authority by providing maximum period of ceiling of 7 days within which copies of grounds and the supporting material existing at the time of detention should be made available to the detenu for his scrutiny for the purpose of preparing representation. In these circumstances, even in the light of Article 22(5) and quite in consonance with the mandate thereof, the legislature has given that much leeway to the detaining authority. If that is so, it can easily be visualised that if the detenu once detained selects his advocate for the purpose of preparing representation and makes an application for permission to consult advocate of his choice for that purpose, as per impugned clause (xi) of Rule 13, the State Government would consider such application with the utmost expedition and would grant such permission which normally would be a mere formality, in a couple of days on receipt of such application and intimation thereof could be sent by the State authorities to the concerned jailor and to the detenu at the earliest and that would entail delay of not more than a couple at days. Time that elapses for undertaking of such exercise by the State Government cannot be said to be unreasonable from any view point. We have to treat the State authorities to be alive to the mandate of the constitutional provision of Article 22(5) as well as requirement of Section 9(1) of the Act. When they have to supply grounds supporting the detention order at the earliest, there is no reason why they would indefinitely sit tight-over the application by the detenu for permission to consult advocate of his choice for the purpose of preparing representation in the light of the grounds supplied to him; If supplying of grounds has to be done at the earliest, there is no reason why the State Government can be apprehended to delay indefinitely or for unreasonable period the application for permission which may be moved by the detenu through jailor for permitting him to have an interview with advocate of his choice for the purpose of preparing representation. In our view, therefore, apprehension of Mr. Patel that procedure of obtaining permission of the State Government as per Rule 13(xi) would be a dilatory procedure and would whittle down the detenu''s constitutional right under Article 22(5) is more imaginary than real. When the impugned provision is read in the light of Article 22(5) and Section 9(1) of the Act and once it is held that application for permission once moved will have to be decided by the State authorities at the the earliest, such apprehension would pale into insignificance. It is easy to visualise that if in a given case, consideration of such application is unduly delayed, the detenu can have legitimate right to submit before the competent authority or court that his continued detention has become illegal on account of infraction of Article 22(5). But such grievance has to be dealt with on the facts of each case. As we have already mentioned earlier, action may become bad in such circumstances on the facts of such a case; But that would not make provision or section bad, of necessity. Thus, it is not possible to agree with the submission of Mr. Patel for the petitioner that the impugned provision is violatiye of Article 22(5) of the Constitution. Equally, it is not possible to agree with him that the said provision by itself must be treated to be unreasonable or arbitrary from any angle so as to violate Arts. 14 and 21 of the Constitution. This contention has, therefore, to be repelled.
23. As a result of the aforesaid discussion, it must be held that the impugned Sub-clause of this Rule is not in violation of Article 14 or 21 of the Constitution nor it is violative of Article 22(5) of the Constitution. The question referred to us, therefore, must be answered in the negative against the petitioner and in favour of the respondents. Order accordingly. Papers of this matter will now be placed before appropriate Bench for proceeding further on the matter in accordance with law.
