1. On 13.1.81, we allowed the Habeas Corpus application of Shri Tarun Kumar Das, a detenu in misc. Case No. 8(HC) of 1981, ordered his release and observed that a reasoned judgment would follow. We were told at the Bar, during the course of hearing, that another application having 'the common question of law' was pending for disposal. So, we deferred delivery of the judgment. The case namely, Civil Rule No. 54(HC) of 1981 (Criminal Misc. case No. 23(HC) of 1981) has come up today. We have heard the parties and find that the case involved the same question of law. Ergo, our reasoned judgment. In the process, we propose to dispose of Civil Rule No. 54 of 1981.
2. A thumb-nail facts of Tarun’s case: Tarun was arrested and detained on the strength of an order issued by the State Government under Section 3(1)(a) of "the National Security Ordinance 11 of 1980" for short "the Ordinance". The Ordinance was promulgated by the President on the 22nd September, 1980, to provide for preventive detention in certain cases and for matters connected therewith. In came into force on the 23rd day of September, 1980. In exercise of its power us 9 of the Ordinance, the State Government, by Notification No. PLA. 1219,80 dated the 14th October, 1980, constituted "an Advisory Board" consisting of the Hon’ble Mr. Justice K.N. Saikia, Judge, Gauhati High Court as Chairman and two other members; (1) Mr. Justice Shambhu Prasad Singh, Retired Judge, Patna High court and (2) Mr. Justice B.N. Sarma, Retired Judge, Gauhati High Court. The
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petitioner was detained on 15.10.80 and was served with the ground of the order of detention. As required under Section 10 of "the Ordinance" the Mate Government placed the case of the detenu before the Advisory Board. Eventually, on 2.12.80, the case of the petitioner came up for consideration before the Advisory Board. His case was considered by the Hon’ble Chairman and Mr. Justice B.N. Sarma. The third Member was absent and did not at all take part in the proceedings. The order of detention was confirmed by the Hon’ble Chairman and Mr. Justice B.N. Sarma. The petitioner questions the validity of the order of confirmation by the Chairman and only one member. The petitioner Submits that his detention was violative of Ss. 9, 10 and 11 of the Ordinance and his fundamental rights by Articles 21 and 22 of the Constitution were violated. The State in its return admits that the third member was absent and the decision was rendered by the Chairman and only one member. It contends that the order was legal and appropriate as Section 11(3) of the Ordinance provides that "on a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board." The respondents contended that there was lawful consideration of the case and a valid confirmation of the order of detention. The detenu petitioned for a Writ of Habeas Corpus and took up various points. The State conceded that the case of the detenu was not considered by all the three members of the Board. We were fully satisfied that the detention was violative of Articles 21 and 22 of the Constitution read with Sections 9, 10 and 11 of the Ordinance and allowed the petition and directed the respondents to release the petitioner. We did not feel it necessary to go into the other points sought to be urged by the learned Counsel for the detenu.
3. Preventive detention was imported to India officially with the Bengal State Prisoners Regulation III, 1818. The oldest Statute dealing with preventive detention was later extended to Madras and Bombay Presidencies. The Regulations were permanent in nature. Besides "the Regulations", preventive detention was also authorised in other manners when the Provincial assemblies passed such Acts. Later, detention was authorised by the Defence of India Acts of 1915 and 1939, by the Government of India Act, 1919, the Infamous Rowlatt Act and by other measures. Under some of the detention laws a detenu could be detained for six months without informing him of the grounds. However, if the period was required to be extended there was necessity for furnishing the grounds as well as for reference to a Special Tribunal. All such Acts excepting that of Bombay granted the detenu the right to make representation against his arrest and detention but the right was very limited as the laws laid down that only such attention need be paid to the representations as the Governor thought it fit. The West Bengal Regulation III of 1948 provided that if detention were to exceed three months, the provincial Government was bound to place the case before a Judge of Calcutta High Court, who had power to release the detenu if the grounds were insufficient. If the orders were confirmed, the detainees could be detained for six months before the case could again come before the High Court Judge. A close lock at the proceedings of the Constituent Assembly Debates. The Framing of India’s Constitution by B. Shiva Rao and GRANVILLR AUSTIN’S 'The Indian Constitution-Cornerstone of a Nation', make it clear that the members of the Constituent Assembly took meticulous care to note these loose and cruel laws. The necessity for preventive detention was felt imperative notwithstanding very liberal grant of Fundamental Rights, however, there was a general apprehension amongst the members that Governments, while exercising their power of preventive detention, could with impunity infringe the Fundamental Rights. Therefore, while granting the executive power to detain persons under Preventive Detention, the members of the Advisory Committee expressed a strong desire 'to curtail the executive power to detain and to keep some check and balance'. At this juncture came up the necessity of determination of the cases of the detainees by an independent Tribunal presided over by High Court Judges or persons qualified to be Judges. At one stage it was felt that no person should be detained longer than 15 days without his case being presented before 'an independent Tribunal presided over by a High Court Judge or the equivalent. The pressure put in by the members for processing cases by an independent Tribunal' produced result and there appeared in the horizon a new Article (15A) culminating in Article 22(4) Proviso of the Constitution. The aim was to control, not to prohibit, preventive detention. It was felt that persons held under 'the preventive detention laws' should not be detained longer than three months unless an Advisory Board consisting of High Court Judges or persons qualified to be Judges supported further detention. The Article made all preventive detention beyond three months period subject to the control of the Advisory Board. There was a very strong objections from certain quarters who advocate that the Executive should not surrender their judgment to an Advisory Board as a matter of Constitutional compulsion. Notwithstanding the objections the right of the detenu to present his case before the Advisory Board found its due place in our Constitution. The amendment granted Parliament the power to prescribe maximum period of detention, the power to prescribe the categories of cases in which a person could be detained for longer than three months without obtaining the opinion of the Advisory Board and the power to lay down the procedure to be followed by the Advisory Board. Therefore the fight to exclude the supervision of the executive power by an independent Advisory Board consisting of High Court Judges or persons qualified to be Judges survived in the teeth of opposition. Article 22(4) of our Constitution is the product of the struggle. The important position of an Advisory Board in the matter of preventive detention is imprinted in Article 22(4). It is a high powered Board composed of highly qualified persons having legal acumen. Preventive detention for a longer period than two months is unauthorised unless there is sufficient cause for such detention. An advisory Board must consist of a Chairman and not less than two other members.
4. The present Ordinance is a law providing for preventive detention which, inter alia, provides constitution of the Advisory Board, reference to Advisory Boards, procedure to be followed by the Advisory Board an action to be taken by the Govt. on receipt of the opinion of the Board, Section 9(1) empowers Governments to constitute "one or more Advisory Boards for the purpose of this Ordinance" Emphasis supplied. It is a measure of abundant caution. In the event of non-availability or inability of one Advisory Board to function, the other Board or Boards may take up the cases. Section 9(3) provides as under:
"9(3). Every such Board shall consist of a Chairman and not less than two other members and the Chairman shall be a serving Judge of the appropriate High Court. [Emphasis supplied]
The language of the provision is explicit and conveys a clear-cut denotation that "an Advisory Board" must consist of a Chairman and "not less than two other members." It is also the mandate of Article 22(4). It is a determination of a quorum for a legally valid Advisory Board. We have no hesitation to arrive at the finale that an Advisory Board must consist of a Chairman and at least two other members. There cannot be a legally valid Advisory Board consisting of a Chairman and less than two other members.
5. We have referred to the history, the background, how and why the Advisory Board was brought in Article 22(4) of the Constitution. An appropriate Govt. must within three weeks from the date of detention refer a case before an Advisory Board. The mandate is imprinted in Section 10 of 'the Ordinance'. Such an Advisory Board must be a Board duly constituted under Section 9(1). The appropriate Government is bound u/s 10 to refer the case of a detenu before the Advisory Board and forward the grounds on which the order has been made and the representation if any made by the detenu. 'The Advisory Board' is bound u/s 11 of the Ordinance to consider the materials placed before it and to decide the case of the detenu and to submit a report in writing whether or not there is sufficient cause for the detention. The functions of the Advisory Board are to (i) to consider the material placed before it, (ii) to call for farther information, if deemed necessary, (iii) to hear the detenu, if he desires to be heard, and (iv) to submit a report in writing within seven weeks from the date of detention of the detenu to the appropriate Government as to whether there is sufficient cause for 'such detention' or whether the detention is at all justified. The important functions of the Advisory Board are self-evident. Article 22(5) envisages a dual obligation of the Government and corresponding dual right in favour of a detenu namely, (1) to have his representation independently considered by the Government and (2) to have his repesentation, in the light of all the facts and circumstances of the case, considered by an Advisory Board. An Advisory Board is to report whether there is sufficient cause for detention. What it has to determine is whether the detention is at all justified. The setting up of an Advisory Board to determine whether such determination is justified is a constitutional safeguard against arbitrary detention. Without the intervention of an Advisory Board, an independent body with persons on it of judicial qualification of a high order, detention beyond the period perscribed, (herein three weeks from the date of detention) must be held to be illegal. These conclusions we draw from Puranlal Lakhanpal vs. Union of India, AIR 1958 SC 163 (169) and 176), Shibapada Mukharjee vs. State of West Bengal AIR 1972 SC 1359; (1357); Ranjit Dam vs. The State of West Bengal AIR 1972 SC 1752 and other decision of the Supreme Court. It has been ruled by the Supreme Court in Abdul Karim vs. The State of West Bengal AIR 1969 SC 1069 (1032, 1034) that Article 22 prescribes the minimum procedure that must be included in any law permitting preventive detention and if such requirements are not observed, the detention infringes the Fundamental Right of the detenu guaranteed under Articles 21 and 22 of the Constitution. It has been further held that all procedural requirements of Article 22 are mandatory in character and even if one of the procedural requirement is not complied with the order of detention would be rendered illegal.
6. Under these circumstances we are constrained to hold that the consideration and deliberation of the Hon’ble Chairman and a Member in place of 3 (three) members Constituting the Board was a positive violation of Articles 21 and 22 of the Constitution as well. We are constrained to hold that the provision of Section 9(3) are mandatory. It is true that Section 11(3) provides that in case of difference of opinion among the members forming the Advisory Board, the opinion of the majority shall be deemed to be the opinion of the Board, but it does not negate the provision of Section 9(3). The Section does not empower only two members to constitute an Advisory Board. Section 11(3) is an enabling provision where a duly constituted Advisory Board consisting of Chairman and at least two members differs, the majority opinion shall be deemed to be the opinion of the 'Board'. This is the only rational answer that can be fathomed from the scheme of the Ordinance. Under similar circumstances the Special Bench of this Court in Kishorilal vs. The State, AIR 1951 Assam 169 (SB) held that where a detenu’s case was considered by only two members and not by all the 3 members of the Advisory Board, the fundamental right of the detenu guaranteed by Article 21 of the Constitution was infringed and the detenu was entitled to liberty. We are in respectful agreement as well as bound by the Special Bench decision of this Court. The State could not advance any argument to distinguish Kishorilal (Supra) nor could the learned Government Advocate point out any decision which has directly or indirectly affected, modified or overruled the decision. Therefore, we hold that the determination made by the Chairman and only member was violative of articles 21, 22(4) and 22(5) of the Constitution read with Section 9(3) of the Ordinance and the petitioner’s guaranteed Fundamental Rights as well as statutory rights were violated. For the foregoing reasons we hold that the detention of the Petitioner, as the case of the detenu was not considered by a 'duly constituted Advisory Board' within a period of three weeks from the date of detention as required under Sections 9 and 10 of the Ordinance. The order of detention was, therefore, quashed by our order dated 13.1.81 and the detenu was set at liberty. Civil Rule No. 54 (EC) of 1981. In the present case, the petitioner was detained on 14.10.80 and his case was put up before the Advisory Board on 2.12.80. His case was determined by the Hon’ble Chairman and only one member of the Board. The third member was absent and did not at all take any part in the proceedings. The petitioner has taken up various grounds including the ground that his detention was not confirmed by a legally constituted Advisory Board, contemplated under the Ordinance read with Article 22(4) of the Constitution. We have already held that such determination was violative of Sections 9(3) and 10 of the Ordinance and Articles 21 and 22 of the Constitution of India. For the reasons set out in the aforesaid case we allow the petition, make the Rule absolute and direct that the detenu shall be set at liberty forthwith unless he is required in. connection with any other case.