CHAPTER - 4 GROUNDS OF PREVENTIVE DETENTION 4.

1 INTRODUCTION : Clauses (4) to (7) of Article 22 contain safeguards relating to preventive detention matter. Article 22 (5) has two parts. One, the detaining authority is to communicate to the detenu grounds of his detention as soon as may be. Two, the detenu is to be afforded the earliest opportunity of making a representation against the order of detention. There is rational connection between these two parts, viz. grounds are to be communicated to the detenu so as to enable him to defend himself. The Supreme Court has drawn several propositions to ensure that the detaining authority effectively communicates grounds to the detenu in such manner that his constitutional right to make a representation against his detention is exercised properly. Article 22 (5) reads as follows :
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

In various decisions of the Supreme Court, it has explained what would mean by Grounds of detention, what would be the effect of vague, irrelevant, extraneous ground, the difference between Ground and Fact and other incidental matters. 4.2 DISCLOSURE OF THE GROUNDS OF DETENTION TO COURT : Section 14 of the Preventive Detention Act, 1950 was strongly attacked in Gopalan v. State of Madras1 on the ground that it violated all principles of natural justice and even infringed the right given by Article 22 (5) of the Constitution. It ran as follows :

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14.(1) No Court shall except for the purposes of a prosecution for an offence punishable under sub-sec. (2) allow any statement to be made or any evidence to be given before it of the substance of any communication made under S. 7 of the grounds on which a detention order has been made against any person or of any representation made by him against such order, and notwithstanding anything contained in any other law, no Court shall be entitled to require any public officer to produce before it, or disclose the substance of, any such communication or representation made, or the proceedings of an advisory board or that part of the report of an advisory board which is confidential. (2) It shall be an offence punishable with imprisonment for a term which may extend to one year or with fine or with both, for any person to disclose or publish without the previous authorisation of the Central Government or the State Government, as the case may be, any contents or matter purporting to be contents of any such communication or representation as is referred to in sub-sec. (1). Provided that nothing in this sub-section shall apply to a disclosure made to his legal advisor by a person who is the subject of a detention order.

Kania C.J. held that if this provision was permitted to stand the Court could have no material before it to determine whether the detention was proper or not. He clarified that he did not mean whether the grounds were sufficient or not. It even prevented the Court from ascertaining whether the alleged grounds of detention have anything to do with the circumstances or class or classes of cases mentioned in S.12 (1) (a) or (b). The Attorney General urged that the whole object of the section was to prevent ventilation in public of the grounds and the representations, and that it was a rule of evidence only which the Parliament could prescribe. Kania C.J. did not agree. Relying on Machindar Shivaji v. The King2 he observed that the Grounds must be connected with the order of preventive detention. If they are not so connected, the requirements of Article 22 (5) are not complied with and the detention order will be invalid. Therefore, it is open to a detained person to contend before a Court that the grounds on which the order has been made have no connection at all with the order. To urge this argument, the aggrieved

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party must have a right to intimate to the Court the grounds given for the alleged detention and the representation made by him. The provisions of S.14 were held to abridge the right given under Article 22 (5) and therefore, ultra vires. All other judges also held that S.14 violated Article 22 (5) and so was void. 4.3 RELEVANT GROUND : Ground of detention should have a rational connection with the object which the detenu had to be prevented from attaining. In Puranlal Lakhanpal v. Union of India3 the object of the appellant's detention was to prevent him from acting in a manner prejudicial to (1) the Security of India and (2) her relations with foreign powers. The ground that the appellant addressed a press conference which was attended by a large body of press correspondents of foreign countries and making a speech containing various false statements about the conditions of the people of Kashmir was held to have rational connection to prevent the activities prejudicial to the security of India and to the relations of India with foreign powers. It was held in Naresh Chandra v. State of West Bengal4 that the statements calling upon persons to build up strong movement against the implementation of Nehru-Noon Pact and to rouse passions by alleging that the Indian Prime Minister had no sympathy for West Bengal, cannot be said to be wholly unconnected with the maintenance of public order. In Tarapada De v. State of West Bengal5 it was held that the irrelevant ground is that ground which has no connection at all with the satisfaction of the Government which makes the order of detention. The Court added that vague grounds do not stand on the same footing as irrelevant grounds.

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Time and again, the Supreme Court has held that it cannot be invited to undertake an investigation into the sufficiency of the matters upon which Government's satisfaction purports to be grounded. However, it was held in Sodhi Shamsher Singh v. State of Pepsu6 that the court can examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of objects prejudicial to the defence of India or to the security of State and maintenance of law and order (sic) therein. One of the grounds of detention in Sushanta v. State of W.B.7 was that detenu along with his associate committed theft of overhead traction wires including contact wire, disrupting train service. The Court held that the detention might have been justified under the head maintenance of supplies and services essential to community but not under maintenance of public order. 4.4 VAGUE GROUND : While commenting on the word vague, the Supreme Court in State of Bombay v. Atma Ram8 observed that vague can be considered as the antonym of definite. If the ground which is supplied to the detenu is incapable of being understood or defined with sufficient certainty, it can be called vague. If, on reading the ground furnished, it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detenu to make a representation against the order of detention, it cannot be called vague. Explaining the scope of vague ground the Supreme Court in Ram Krishan v. State of Delhi9 pointed out that a layman who is not experienced in the interpretation of documents can hardly be expected without legal aid, which is denied to him in preventive detention cases, to interpret the grounds in the proper sense. Therefore, it is up to the detaining authority to make his

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meaning clear beyond doubt, without leaving the person detained to his own resource for interpreting them. Otherwise such grounds would be regarded as vague so as to render it difficult for the petitioner to make an adequate representation. Vagueness is a relative term. The Supreme Court in Naresh Chandra v. State of West Bengal10 clarified that its meaning must vary with the facts and circumstances of each case. What may be said to be vague in one case may not be so in another. The ground which does not give sufficient particulars to enable the detenu to make an adequate representation against the order of detention was held vague in P.Mukherjee v. State of W.B.11 Giving such vague ground infringes the constitutional safeguard provided under Article 22 (5). The majority in Prabhu Dayal v. Dist. Magistrate Kamrup12 ruled that merely because the Advisory Board was seized of the matter when the writ petition was filed and could also consider the contention of the petitioner in their representation that the grounds were vague, the Supreme Court would not refuse to interfere with the orders of detention. In Sasthi Keot v. State of West Bengal13 it was held that the ground that the detenu was a man of desperate habits and dangerous character is vague. The Supreme Court analysed the implications of vague, irrelevant and non-existent grounds on the rights of the detenu in Mohd. Yousuf v. State of J. & K.14 The Court observed that a detenu has two rights under Article 22 (5) of the Constitution : (1) to be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a

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representation which on being considered may obtain relief to him. The inclusion of an irrelevant or non-existent ground among other relevant grounds is an infringement of the first of the rights and the inclusion of an obscure or vague ground among other clear and definite grounds is an infringement of the second of the rights. In either case there is an invasion of the constitutional rights of the detenu. It is not expected from the detaining authority to give meticulous details of facts to the detenu. In Dhananjoy Das v. Dist. Magistrate15 it was held that if the basic facts have been given in a particular case constituting the grounds of the detention which enable the detenu to make an effective representation, merely because meticulous details of facts are not given will not vitiate the order of detention. In Lawrence D'Souza v. State of Bombay16 the grounds of detention furnished to the detenu were not as precise and specific as might have been desired. The Supreme Court pointed out that the detenu did not apply to the Government to be supplied with the particulars of the grounds furnished to him. The Court observed that the fact that the detenu made no application for particulars was a circumstance which might well be taken into consideration in deciding whether the grounds can be considered to be vague. It was further observed by the Court that having regard to the nature of the alleged activities (espionage activity in the instant case) of the appellant, it was not unlikely that no more could be gathered or furnished. The Supreme Court held in Binod Bihari v. State of Bihar17 that the allegation in the grounds of detention that the detenu was propagating communal hatred between Adivasis and others (Biharis) and also between Adivasis and non-Adivasis cannot be regarded as vague and unintelligible. Adivasis are the original inhabitants of the area while outsiders are those

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Biharis who have come from outside and who are, therefore, regarded as outsiders by the original inhabitants. 4.5 EXTRANEOUS GROUND : The facts of the case Mehboob Khan v. Police Commr., Ahmedabad18 were : The three petitioners were detained under S. 3(1) of Gujarat Prevention of Anti-Social Activities Act, 1985 on ground that they were dangerous persons within the ambit of S. 2 (c) of the Act. All the grounds of detention which were similar except the reference of the cases registered against each of the petitioners spelt out that the detaining authority had reached his subjective satisfaction on the materials placed before him that all the petitioners are dangerous persons within the ambit of Section 2 (c). At the end of each of the grounds of detention, it was specifically averred that The copies of the papers shown in the schedule are given to you hereby meaning thereby that all the cases noted in Annexure have been taken into consideration against each of the writ petitioners for holding that they are all dangerous persons. It was held that detaining authority did not apply his mind properly confining his consideration only with reference to incidents mentioned in the grounds of detention, and had mechanically passed these orders taking into consideration various extraneous matters, namely the incidents other than those shown in the grounds of detention with which the detenus had no direct or indirect connection or participation. In the circumstances, the Court held that the three detention orders suffered from the vices of non-application of mind and extraneous consideration. 4.6 WHEN ONE OF SEVERAL GROUNDS IS VAGUE,

IRRELEVANT OR NON-EXISTENT : The question whether one vague ground among others, which are clear and definite, would infringe the constitutional safeguard provided in Article

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22 (5) came for consideration first time before the Supreme Court in Ram Krishan v. State of Delhi19 and was answered in the affirmative. In Shibban Lal v. State of U.P. 20 it was held by the Supreme Court that the power to issue a detention order under S. 3 of the Preventive Detention Act, 1950 depends entirely upon the satisfaction of the appropriate authority specified in that section. The sufficiency of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in a Court of law, except on the ground of mala fides. A Court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenu under S. 7 of the Act. Where the Government itself while confirming the detention in exercise of its powers under S. 11 admits that one of the two grounds mentioned in the original order is unsubstantial or nonexistent, to say that the other ground, which still remains, is quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. It was argued in Shibban Lal's Case that the grounds which weighed with the detaining authority are that his activities were in the first place prejudicial to the maintenance of supplies essential to the community and in the second place were injurious to the maintenance of public order. The first ground did not exist in fact. In these circumstances the detention order originally made cannot stand, for if the detaining authority proceeded on two grounds to detain a man and one of them is admitted to be non-existent or irrelevant, the whole order is vitiated as it cannot be said to what extent the

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bad ground operated on the mind of the detaining authority. The Court found favour with this line of argument. In Ram Manohar v. State of Bihar21 relying on Shibban Lal's case the Supreme Court held that the ground that the acts were prejudicial to public safety was in terms of the Rule and by itself would have justified the detention. But as there was another ground viz., the acts were prejudicial to maintenance of law and order, which was not in terms of the Rule and as it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction which formed the basis of the order, the order was illegal. In Motilal v. State of Bihar22 relying on Shibban Lal and Ram Krishan, the Supreme Court held that the defects noticed in the two of the grounds (one ground vague and irrelevant and other ground non-existent) were sufficient to vitiate the order of detention as it was not possible to hold that those grounds could not have influenced the decision of the detaining authority. The Court further observed that our Constitution has made provision for safeguarding the interests of the society. Its provisions harmonise the liberty of the individual with social interests. The authorities have to act solely on the basis of those provisions. They cannot deal with the liberty of the individual in a casual manner, as has been done in this case. Some of the grounds stated in the order of detention were found to be irrelevant to public order in Sushanta v. State of W.B. 23 It was held that the detention could not be upheld because Court could not predicate what subjective satisfaction of authority would have been on exclusion of those reasons.

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Relying on Shibban Lal and Ram Manohar it was reiterated in P.Mukherjee v. State of W.B. 24 that even if any one of the grounds or reasons that lead to the satisfaction is irrelevant, the order of detention would be invalid even if there were other relevant grounds, because it can never be certain to what extent the bad reasons operated on the mind of the authority concerned or whether the detention order would have been made at all if only one or two good reasons had been before them. The extraneous nature of even one of the grounds of detention was held to vitiate the order of detention in R.K. Paul v. State of W.B. 25 It was held in Kuso Sah v. State of Bihar26 that as two out of the three grounds set out were irrelevant to the object of detention, the order of detention was illegal and must be set aside. Where the petitioner was detained under Section 3 of the Maintenance of Internal Security Act, 1971 in order to prevent him from acting in any manner prejudicial to the maintenance of public order but five of the sixteen grounds supplied to him had no rational connection with public order, the order of detention was held invalid in Bhupal Chandra v. Arif Ali. 27 Dwarika Prasad v. State of Bihar28 reiterated the same principle by holding that in a detention order the decision of the authority is a subjective one. Even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non-existent or mis-conceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity. In Ram Bahadur v. State of Bihar29 where out of 8 grounds the first ground was vague and the second irrelevant the order of detention was set aside.

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To nullify the rationale of all these decisions, Section 5A of the COFEPOSA Act, 1974 was introduced by Amendment Act 35 of 1975. It reads as follows :
5A. Grounds of detention severable Where a person has been detained in pursuance of an order of detention under sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are i) vague, ii) non-existent, iii) not relevant, iv) not connected or not proximately connected with such person, or, v) invalid for any other reason whatsoever, and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (1) of S. 3 with reference to the remaining ground or grounds and made the order of detention; (b) The Government or officer making the order of detention shall be deemed to have made the order of detention under the said subsection (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds.

Section 5A stipulates that when the detention order has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly that if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad. In Prakash Chandra v. Commr. & Secy. Govt. of Kerala30 it was held that in view of S. 5 A of COFEPOSA Act, 1974 even after ignoring the invalid ground there was sufficient material to sustain the order of detention. Prakash Chandra was followed in Pushpadevi v. M.L. Wadhavan31 in holding that through one or more grounds were found to be vague, nonexistent, not relevant, not connected, irrational or invalid for any other reason

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whatsoever, detention could be sustained on remaining grounds. Shibban Lal v. State of U.P., Ram Manohar v. State of Bihar, P. Mukherjee v. State of W.B. were held not good law in view of introduction of S. 5 A to the COFEPOSA Act, 1974. The case of Madan Lal Anand v. Union of India32 had similar facts as Pushpadevi's case and was decided similarly. A nine Judge-Bench of the Supreme Court held in Attorney General for India v. Amratlal Prajivandas33 that S. 5 A of COFEPOSA Act, 1974 (which is in identical terms with S. 5 A of National Security Act, 1980) is not inconsistent with Article 22 (5) and is not invalid or void. The validity of S. 5A was first time challenged in this case. The Court pointed out that there are several decisions of this Court to the effect that an order of detention can be based upon single ground and it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. The Court gave an example where three orders of detention are made against the same person under COFEPOSA Act. Each of the orders is based upon only one ground which is supplied to the detenu. It is found that the ground of detention in support of two of such orders is either vague or irrelevant. But the ground in support of the third order is relevant, definite and proximate. In such a case, while the first two orders would be quashed, the third order would stand. The Court held that this is precisely what the first part of Section 5 A seeks to do. The Court further explained the position thus : Where the order of detention is based on more than one ground, the Section creates a legal fiction, viz. it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. The result is the same as the one in the example given above. The Parliament is competent to create a legal fiction and it did so in this case. Article 22 (5) does not in terms or otherwise prohibit making of more than one order

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simultaneously against the same person, on different grounds. Parliament is competent to say, by creating a legal fiction, that where an order of detention is made on more than one ground, it must be deemed that there are as many orders of detention as there are grounds. If this creation of legal fiction is competent, then no question of any inconsistency between Section 5 A and Article 22 (5) can arise. Consequently, Section 5 A of COFEPOSA Act, 1974 is not invalid or void. It is not violative of clause (5) of Article 22. It is submitted by the researcher that Amendment of COFEPOSA Act, 1974 to insert S. 5 A in it, is an unwelcome device used by the legislature in over-riding judicial verdicts. It is also strange that the Supreme Court meekly submitted to this attitude of the legislature and did not assert itself by showing courage in striking down S. 5 A. S. 5 A is totally inconsistent with the stance adopted by the Supreme Court so far. Article 22 (5) as interpreted by the Supreme Court over the last more than four decades meant this : An order of preventive detention is based upon the subjective satisfaction of the detaining authority and where such satisfaction has been arrived at on grounds some of which are relevant and definite grounds and some irrelevant, vague and nonexistent, it is not possible or permissible for the Court to predicate which grounds have influenced the formation of his satisfaction. It is not open to the Parliament to make a law saying that where the grounds upon which the requisite satisfaction has been formed are partly good and partly bad, yet the order must be held to be good with reference to and on the basis of good grounds, eschewing the bad grounds. Such a law, it is submitted, would be in direct conflict with Article 22 (5). S. 5 A also nullifies the ratio of the following important decisions of the Supreme Court in this regard : Ram Krishan v. State of Delhi, Shibban Lal v. State of U.P., Ram Manohar v. State of Bihar, Motilal v. State of Bihar, P.Mukherjee v. State of W.B., Kuso Sah v. State of Bihar, Dwarika Prasad v. State of Bihar etc. The example given by the Court is not apt and the reasoning adopted for coming to the conclusion is

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not satisfactory and convincing. Though an order of detention can be based upon single ground, when the order is based on multiple grounds, the crux of the matter is the detaining authority is influenced by the cumulative effect of all the grounds and it cannot be definitely said that the detaining authority would have been similarly satisfied on any one or few of those grounds. In case of three separate orders of preventive detention, each on a separate ground, there is no difficulty in holding that there is valid subjective satisfaction of the detaining authority. But in case of one order of detention based on three grounds, no such presumption can be drawn because how much each ground contributed to the subjective satisfaction cannot be ascertained. So, if one of the grounds is vague, irrelevant or non-existent the order of detention must fall. The deeming provision made in S. 5 A of COFEPOSA Act, 1974 is fanciful and artificial. 4.7 PARTICULARS OF THE GROUND : The first part of Article 22 (5) gives a right to the detained person to be furnished with the grounds on which the order has been made. In State of Bombay v. Atma Ram34 the Supreme Court held that grounds are conclusions of facts and not a complete detailed recital of all the facts. However, the person detained is entitled in addition to the right to have the grounds of his detention communicated to him, to a further right to have particulars as full and adequate as the circumstances permit furnished to him so as to enable him to make a representation against the order of detention. It was further held that the sufficiency of the particulars is a justiciable issue, the test being whether it is sufficient to enable the detained person to make a representation which on being considered may give relief to the detained person. In Ram Krishan v. State of Delhi35 the Supreme Court developed this proposition by laying down that this constitutional requirement under Article 22 (5) must be satisfied with respect to the each of the grounds communicated to the person detained subject to a claim of privilege under clause (6) of Article 22. Where it has not

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been done in regard to one of the grounds mentioned in the statement of grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21 and he is, therefore, entitled to be released. Patanjali Sastri J., speaking for the Court observed that Preventive Detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. The Supreme Court observed in Thakur Pd. v. State of Bihar36 that the obligation of the Government to furnish grounds which are not vague cannot be taken to mean that they must furnish every meticulous detail. In Khudiram Das v. State of W.B.
37

the Supreme Court gave wide

meaning to the word 'ground'. While explaining the rationale of this interpretation, the Court observed that the reason why the grounds are required to be communicated to the detenu as soon as may is twofold. In the first place, the requirement of the communication of grounds of detention acts as a check against arbitrary and capricious exercise of power. The detaining authority cannot whisk away a person and put him behind bars at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenu, so that he can also invoke the power of judicial review howsoever limited and peripheral it may be. Secondly, the detenu has to be afforded an opportunity of making a representation against the order of detention. But if the grounds of detention are not communicated to him, how can he make an effective representation? The opportunity of making a representation would be rendered illusory. The communication of the grounds of detention is, therefore, also intended to sub-serve the purpose of enabling the detenu to make an effective representation. Then it is obvious that the grounds mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention. It was thus made clear that the connotation of the word grounds is not restricted to a bare statement

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of conclusions of fact. Therefore, nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. Golam v. State of W.B.
38

reiterating same interpretation of the word grounds added that whether this requirement is complied with or not is justiciable. The case of Bhawarlal v. State of T.N.
39

goes to hold that where

insufficient particulars are mentioned in the grounds, the detenu is entitled to call for better particulars. That is a right which flows from the constitutional right to be afforded a reasonable opportunity to make representation. It was held in Ganga v. Government of Maharashtra40 that it was constitutional imperative that in addition to the supply of the grounds of detention, all the basic materials relied upon or referred to in those grounds must be supplied to the detenu with reasonable expedition to enable him to make a full and effective representation at the earliest. What is a reasonable expedition is a question of fact depending upon the circumstances of the particular case. Sub-section (3) of S. 3 of the COFEPOSA Act, 1974 provides that the grounds of detention should be communicated to the detenu within five days and in exceptional circumstances within fifteen days. In Icchu Devi v. Union of India41 the Court pointed out that the grounds of detention in their entirety must be furnished to the detenu within this time limit. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore, be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the

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detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and sub-section (3) of Section 3 of the COFEPOSA Act. If this requirement is not satisfied, the continued detention of the detenu would be illegal and void. Unreasonable delay of more than three weeks in supplying the detenu with copies of basic documents relied upon in the grounds of detention were held to infringe this constitutional imperative in Suryakant v. State of Maharashtra.42 In Hansmukh v. State of Gujarat43 the Court distinguished between Basic Facts and Subsidiary Facts and laid down different time limits for supplying them to the detenu. The Court observed that while the expression grounds includes not only conclusions of fact but also all the basic facts on which conclusions are founded. The basic facts are different from subsidiary facts or further particulars of the basic facts. The distinction between basic facts which are essential factual constituents of the grounds and their further particulars or subsidiary details is this. While the basic facts being integral part of the grounds must, according to Section 3 (3) of COFEPOSA Act be communicated to the detenu, as soon as may be, after the detention, ordinarily, not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention, further particulars of those grounds in compliance with the second constitutional imperative spelled out from Article 22 (5) in Khudiram Das's case are required to be communicated to the detenu as soon as may be practicable, with reasonable expedition. If the grounds communicated are elaborate and contain all the basic facts but are not comprehensive enough to cover all the details or particulars of the basic facts, such particulars also must be supplied to the detenu, if asked for by him, with reasonable expedition, within a reasonable time.

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Grounds in Article 22 (5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The grounds must be self-sufficient and self-explanatory. Emphasizing the importance of the supply of copies of documents, the Supreme Court in Shalini Soni v. Union of India44 ruled that the copies of documents to which reference is made in the grounds must be supplied to the detenu as part of the grounds. The failure to communicate the factual material as a part of the grounds would amount to non-communication of grounds on which the order of detention has been made and thus would infringe Article 22 (5). The grounds so made known to the detenu should comprise all the constituent facts and materials that went in to make up the mind of the detaining authority and not merely the inferences of facts arrived at by the detaining authority. The case of M.M. Patel v. State of Maharashtra45 is to the same effect. Where the materials not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of the detention, continuation of his detention was held illegal in Lallubhai Jogibhai v. Union of India45. The Supreme Court pressed into service Article 21 to develop further, law in this regard in Kamla v. State of Maharashtra47. The Court ruled that the documents and materials relied upon in the order of detention form an integral part of the grounds and must be supplied to the detenu pari passu the grounds of detention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention. The Court pointed out that in view of the decision in Maneka Gandhi's case, Article 22 (5) of the Constitution assumes a new complexion and has to be construed liberally and meaningfully. If a procedure under Article 21 has to be reasonable, fair and just, then real, meaningful and

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effective opportunity should be provided to the detenu to explain his case to the detaining authority in his representation. Non-supply of documents and materials along with detention order would make continued detention of detenu void. The supply of grounds simpliciter would give detenu not a real but merely an illusory opportunity to make a representation to the detaining authority. S.M. Fazl Ali J. speaking for the Court made a statement in the judgment (para -5) in these words :
If a procedure under Article 21 has to be reasonable, fair and just, then the words effective representation appearing in Article 22 (5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation. If the words effective representation are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of Article 22 (5) but also of Article 21 of the Constitution.

The whole premise of this statement is based on the assumption that Article 22 (5) contains the words effective representation. This assumption is patently wrong. Article 22 (5) does not use the adjective effective before the word representation. It is submitted that the Supreme Court has clearly erred in laying down a law on a non-existent word in the Constitution. In L.M.S. Ummu Saleema v. B.B. Gujral48 the Supreme Court held that every failure to furnish copy of a document to which a reference is made in the grounds of detention is not an infringement of Article 22 (5), fatal to the order of detention. It is only failure to furnish copies of such documents, as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violation of fundamental rights guaranteed by Article 22 (5). In the instant case the detenu was not furnished with copies of the documents to which only casual or passing reference was made in course of narration of facts but which were not relied upon by the detaining authority while making the order of detention. The Court held that it could not be said that the detenu was prevented from making

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an effective representation and consequently right guaranteed by Article 22 (5) would be violated. In following cases non-supply of copies of documents to detenu on which grounds of detention were based was held to vitiate the order of detention and the detenu entitled to be set at liberty : Abdul Aziz v. Delhi Administration49, Ana Carelina D'Souza v. Union of India50, Virendra Singh v. State of Maharashtra51, Munna Tuin v. Dist. Magistrate52, Mulchandani v. Asst. Secy. Govt. of Maharashtra53, Yumnam Mangibabu Singh v. State of Manipur54, Kailash Pandey v. State of U.P. 55, P.U. Abdul Rahiman v. Union of India56, Sophia Gulam Mohd. Bham v. State of Maharashtra57. Once the documents are referred to in the grounds of detention, it was held in Kirit Kumar v. Union of India58 that it becomes the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds or pari passu the grounds of detention. While taking note of various phraseology used in this connection the Supreme Court observed that there is no particular charm in the expressions relied on, referred to or based on because ultimately all these expressions signify one thing, namely, that the subjective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention. The question whether the grounds have been referred to, relied on or based on is merely a matter of describing the nature of grounds. So it is absolutely clear that whether the documents concerned are referred to, relied upon or taken into consideration by the detaining authority, they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention. Even if the detenu is already aware of the contents of the documents, the Supreme Court held in Mehrunnisa v. State of Maharashtra59 that the detenu was entitled to be supplied with copies of all material documents

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instead of having to rely upon his memory in regard to the contents of the documents. In Hemlata v. State of Maharashtra60 it was held that when an order of detention together with the grounds of detention is served on a detenu, the detenu may ask for particulars on which a ground is based if they are not already there. Under sub-section (3) of S. 3 of the COFEPOSA Act, 1974 it is provided that for the purpose of Article 22 (5) of the Constitution, the communication to a person detained in pursuance of the detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. In Sunil Dutt v. Union of India61 it was held that this provision under which five days' period in normal circumstances and fifteen days period in exceptional circumstances has been provided relates to the supply or communication of the grounds on which the order of detention has been made to the detenu. It has no reference to the documents and material on the basis of which the detention order has been made. The Supreme Court ruled in Mohd. Zakil v. Delhi Administration62 that the question of demanding the documents is wholly irrelevant and the documents relied on or referred to in the order of detention should be given by the detaining authority to the detenu pari passu the grounds of detention instead of keeping the detenu waiting for the documents to be supplied with. The grounds of detention must be furnished to the detenu under COFEPOSA Act, 1974 ordinarily within five days and in the exceptional circumstances and for reasons to be recorded in writing not later than fifteen

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days from the date of his detention. In relation to the duty of the detaining authority to inform the detenu about the existence of exceptional circumstances and what they were the Court observed in Ibrahim Ahmad v. State of Gujarat63 that neither Article 22 (5) nor does the COFEPOSA Act contain any provision which cast a duty upon the detaining authority in terms to inform the detenu anything about the exceptional circumstances due to which delay might occur nor about the fact whether reasons have been recorded in writing or not. It is also true that the Court will go into and satisfy itself about these matters when any issue in that behalf is raised before it. One of such safeguards is that unless exceptional circumstances really obtain in a case the delay in supply of grounds of detention and/or the documents and statements incorporated therein by reference beyond the normal period of five days would be fatal to the continued detention of the detenu. In other words, the detenu is entitled to satisfy either the superior authority or the Advisory Board that the delay that has occurred in the supply of requisite material to him was not justified because exceptional circumstances did not exist or those put forward were unreal or invalid. Obviously, the detenu will not be in a position to do so if the alleged exceptional circumstances are not communicated to him. Therefore, the Court ruled that a duty to inform the detenu about the existence of exceptional circumstances and what they were for delay in supplying grounds of detention and/or documents and statements incorporated therein arises by necessary implication and flows from the right which is conferred upon the detenu to make representation against the detention. However, this case was expressly overruled in State of Rajasthan v. Talib Khan64. In this case the grounds of detention were not supplied to the detenu within 5 days of his detention but due to exceptional circumstances were supplied to him within 10 days (under S. 8 (1) of the National Security Act, 1980). The non-communication of the exceptional circumstances and the reasons recorded for non-supply of the grounds of detention before the expiry

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of five days but within the outer limit of ten days, along with the grounds of detention was held not to vitiate the order of detention. The Court observed that it cannot be said that such non-communication will, by necessary implication, amount to breach of the valuable right of representation at the earliest opportunity, as envisaged under Article 22 (5) and thereby the detenu will become entitled to be released from detention. What is material and mandatory is the communication of grounds of detention to the detenu together with documents in support of subjective satisfaction reached by the detaining authority. When the representation has been made by the detenu to the appropriate Government or to the Advisory Board, it may be one of the grounds for him to impugn the order of detention that he was not supplied with the grounds within the time prescribed and thereby he was unjustifiably detained, without any reasonable justification. When such a ground has been raised and pressed for consideration, it would be for the detaining authority to satisfy the appropriate Government or Advisory Board or in an appropriate case in the proceedings under Article 226 of the Constitution. The exceptional circumstances are those due under which the grounds and the documents would not be supplied to the detenu and that the same were recorded in writing in the record of the detaining authority. If the appropriate government or the Advisory Board or the Court are not satisfied with the recorded exceptional circumstances due to which the grounds of detention could not be supplied after five days but before the expiry of ten days, that may be one of the circumstances which the appropriate Government or Advisory Board or the Court may consider whether the detention order is vitiated or is an infraction of Article 22 (5) of the Constitution. But since the Act does not envisage communication of the exceptional circumstances and the reasons recorded for non-supply of the grounds that ground of non-communication or their non-supply by itself is not sufficient to hold that the order of detention is in violation of Article 22 (5) of the Constitution.

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It was held in Haridas Amarchand Shah v. K.L. Verma65 that when copies of vital and relevant documents which the detaining authority while reaching subjective satisfaction considered were furnished to detenu, but copies of other seized documents which were mentioned in Panchanama but were not considered by the detaining authority need not be supplied to detenu. The facts of the case Vashisht Narain Karwaria v. State of U.P. 66 were that there were allegations in documents which were enclosed with grounds of detention that many cases/offences had been registered in various police stations against detenu. Detenu was also alleged to be hardened criminal and having gang under his control committing heinous crimes. No particulars or details were given in respect of offences. It was held that the detenu could be said to have been deprived of making effective and purposeful representation. The non-consideration by the detaining authority of the documents which are not material documents would not impair the satisfaction arrived at by the detaining authority and would not vitiate the order of detention. For the same reason, the Supreme Court held in M.Mohd. Sulthan v. Jt. Secy. to Govt. of India, Finance Deptt. 67 that the non-supply of the copies of the same to the detenu would not result in denial of the right of the detenu to make a representation under Article 22 (5) of the Constitution. It was held in Kamarunnisa v. Union of India68 that the documents referred to in the grounds of detention but not relied upon by Detaining Authority while arriving at subjective satisfaction to detain need not be supplied to the detenu. The corollary of this proposition is to be found in Abdul Sathar Ibrahim Manik v. Union of India69 where the Court held that only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may in certain cases depending upon the facts and circumstances amount to violation of Article 22 (5) of the Constitution.

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In an interesting case of State of Tamil Nadu v. Senthil Kumar70 the facts were that the documents in support of the grounds were sent to him in a casual manner without a covering letter and without being told for what purpose they were sent to him and without mentioning that they would be placed before the Advisory Board as well as the Government in connection with the confirmation of the order of detention. This caused confusion to the detenu as he was kept in darkness about the purpose of furnishing the documents. The Court held that the fact that the wife of the detenu did file a representation was no answer to the complaint of the detenu that had he been informed that those documents were intended to be placed before the Advisory Board and they would also be taken into consideration for purposes of passing the order of confirmation under S. 8 (f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, he would have made an effective representation. The Court held this deprivation of him of the chance of making effective representation resulted in infringement of right guaranteed under Article 22 (5). 4.8 NON-DISCLOSURE OF FACTS : The right of the detenu under Article 22 (5) to be furnished with the grounds of detention and particulars thereof is subject to the limitation under Article 22 (6) whereby disclosure of facts considered to be against public interest cannot be required. Clause (6) of Article 22 reads as follows : (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. In Lawrence D'Souza v. State of Bombay71 it was held that both the obligation to furnish particulars and the duty to consider whether the disclosure of any facts involved therein is against public interest, are vested in the detaining authority, not in any other. There is no obligation under Article

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22 (5) and (6) to communicate to the detenu the decision not to disclose the facts as well as the ambit of the non-disclosure at the time when the grounds are furnished. The necessity for such a communication would arise only if the detenu, feeling the grounds to be vague, asks for particulars. An obligation to communicate the decision not to disclose facts considered prejudicial to public interest may well be implied in such a situation. But in the absence of any such request by the detenu, the non-communication of the decision cannot be held to have hampered his constitutional right of representation and an obligation to communicate cannot be implied in those circumstances. In Puranlal Lakhanpal v. Union of India72 following Lawrence D'Souza, the Supreme Court held that the right of the detenu to be furnished with facts or particulars is subject to the limitation mentioned in Clause (6) and even if the grounds communicated are not as precise and specific as might be desired, the appropriate authority has the right to withhold such facts or particulars, the disclosure of which it considers to be against the public interest. The Court observed that Clause (5) of Article 22 confers two rights on the detenu, namely, first, a right to be informed of the grounds on which the order of detention has been made, and secondly, to be afforded the earliest opportunity to make a representation against the order. If, grounds which have a rational connection with the objects mentioned in S. 3 of the Preventive Detention Act, 1950 are supplied, the first condition is complied with. But the right to make a representation implies that the detenu should have such information as will enable him to make a representation and if the grounds supplied are not sufficient to enable the detenu to make a representation, he can rely on the second right. The second right, however, is again subject to the right of privilege given by Clause (6) and the obligation to furnish grounds and the duty to consider whether the disclosure of any facts involved therein is against public interest, are both vested in the detaining authority and not in

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any other. The case of Wasi Uddin Ahmed v. District Magistrate Aligarh73 is to the same effect. 4.9 COMMUNICATION OF THE GROUNDS OF DETENTOIN : While observing that instead of giving the information with reasonable details, there is a deliberate attempt to use the minimum number of words in the communication conveying the grounds of detention, the Supreme Court in State of Bombay v. Atma Ram74 emphasized that the communication made to the detained person to enable him to make the representation should, consistently with the privilege not to disclose facts which are not desirable to be disclosed in public interest, be as full and adequate as the circumstances permit. Clause (c) was added in 1954 to Article 35 of the Constitution. The effect of the modification in Article 35 was that such of the provisions of the Jammu and Kashmir Preventive Detention Act (4 of 2011) as are inconsistent with Part III of the Constitution shall be valid until the expiration of five years from the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954. Hence, the Supreme Court held in P.L. Lakhanpal v. State of Jammu and Kashmir75 that so long as the Act continues in force, the aid of the provisions of Articles 21 and 22 cannot be invoked to attack the constitutionality of S. 8 (1) of the Act by a detenu. Hence, the detenu is not entitled to know the grounds upon which he had been detained beyond what is disclosed in the order itself, where the Government by order has declared that it would be against the public interest to communicate to him the grounds on which the detention order has been made. In Naresh Chandra v. State of West Bengal76 it was observed by the Supreme Court that the detenu has to be served with a copy of the order passed by the authority contemplated by Sub-S. (2) of S. 3 of the Preventive Detention Act, 1950 containing firstly, recitals in terms of one or more of the

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sub-clauses of clauses (a) and (b) of S. 3 (1), which may be called 'preamble' and secondly, the grounds contemplated by S. 7, namely, the conclusions of fact which have led to the passing of the order of detention, informing the detenu as to why he was being detained. If the grounds do not contain all the particulars necessary for enabling the detenu to make his representation against the order of his detention, he may ask for further particulars of the facts and the authority which passed the order of detention is expected to furnish all that information. Thus, the order of detention to be served upon the person detained would usually consist of the first two parts, namely, the preamble and the grounds, but it may also consist of the third part, namely, the particulars, if and when they are required or found to be necessary. The preamble cannot be treated as the grounds of detention contemplated by S. 7. However, in Mohd. Yousuf v. State of J. & K. 77 the Supreme Court differing from the view in Naresh Chandra's Case held that it is not permissible to dissect or trisect the grounds of detention into introduction, background and 'grounds' as such. So far as grounds of detention are concerned no distinction can be made between introductory facts, background facts and grounds as such and it could not be said that even if introductory facts or background facts are vague or irrelevant, the same would not vitiate detention. All allegations of fact which have led to the passing of the order of detention are grounds of detention. If such allegations are irrelevant or vague the detenu is entitled to be released. The Supreme Court took a full circle in Dhananjoy Das v. Dist. Magistrate78 when it reverted to its original view in Naresh Chandra's Case by holding that it cannot be said that there can be no preamble or introductory para in the grounds of detention. The Supreme Court observed that there is no bar to have introductory paragraphs in the grounds. Whether a particular paragraph in the grounds amounts only to a preamble or introduction is to be determined on the facts and circumstances of each case and it is open to the Court to come to its own conclusion whether that

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paragraph is only an introductory para or contains the grounds on the basis of which the detaining authority had the subjective satisfaction for passing the order of detention. The Court ruled that if the first paragraph of the grounds of detention is only a preamble, prelude or introductory para, the vagueness in the first paragraph cannot be made a ground of attack on the impugned order. Commenting on Mohd. Yousuf's Case, the Court observed that the observations in that case do not indicate that there can be no preamble or introductory para in the grounds of detention. It is submitted that this last observation of the Supreme Court is not correct but it can be said that the general ruling in Dhananjoy Das's Case takes a balanced view of the matter. In Bhut Nath v. State of W.B.
79

the Supreme Court held that the

fundamental constitutional mandates of Article 22 (5) are that the authority (a) shall communicate to the detenu 'all the material grounds on which the order has been made' and (b) shall afford him the earliest opportunity of making a representation against the order. The Court further observed that the soul of Article 22 is the fair chance to be heard on all particulars relied on to condemn the detenu to preventive detention. Particulars conveyed to Government and eventually to the Board may not be behind the back of the detenu. Article 22 (5) vests a real, not illusory right, that communication of facts is the cornerstone of the right of representation and orders based on

uncommunicated materials are unfair and illegal. This precedent laid down in this case was followed in following subsequent cases : Debu Matho v. State of W.B. 80, Alek Mohammad v. State of W.B. 81, G.H. Mondal v. State of W.B. 82 , Dharman Raj v. State of W.B. 83, Krishna Lal Dutta v. State of W.B. 84, S.K. Jalil v. State of W.B. 85, Panna v. State of W.B. 86, Bablu Das v. State of W.B.87. In a case of preventive detention, it was held in Ajit Kumar v. Dist. Magistrate, Birbhum88 that it is absolutely necessary to communicate the grounds of detention to the detenu in clear and unambiguous terms giving as

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much particulars as will facilitate making of an effective representation in order to satisfy the detaining authority that the order is unfounded or invalid. In Madhab Roy v. State of W.B. 89 the grounds of detention supplied to detenu indicated only one single instance of theft of copper return feeder wire of Railway Traction. But the District Magistrate took into consideration not only the solitary incident intimated to the detenu but also the fact that the detenu was one of the notorious antisocial elements and that he was indulging in committing theft of copper feeder wires from railway stations. It was observed by the Court that cutting and removal of copper return feeder wire of railway traction was a sophisticated and complex operation which required technical skill and expertise and was not the work of a layman or a novice. Therefore, though the incident, referred to in the communication served on the petitioner was a single solitary incident it could not be looked upon as an isolated act. It necessarily connoted a course of previous conduct of such or similar activities where specialized experience had been acquired. The allegation that the detenu was one of the notorious anti-social elements indulging in committing theft of copper feeder wires from railway tractions was therefore, really nothing but an elaboration of what was already implied in the apparently single solitary incident communicated to the detenu. So it could not be said that in arriving at the requisite satisfaction the District Magistrate relied on any ground not communicated to the detenu, or that in making the order of detention he was guilty of any violation of the statutory provisions in Section 8 of the Maintenance of Internal Security Act, 1971 or of the constitutional safeguard in Article 22 (5). Where the recovery of the stolen articles from one of the detenu's associates weighed with the detaining authority in making the detention order, omission to disclose in the grounds, the name of the associate from whose possession the recovery of the stolen articles, the subject matter of the thefts

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disclosed in the grounds, was made, amounts to denial of an effective opportunity to represent against the order. For this infirmity in the grounds it was held in Gopal Bauri v. Dist. Magistrate, Burdwan90 that the detenu is denied the constitutional protection under Article 22 (5) of the Constitution. A sort of judicial activism is discernible in the judgement of Wasi Uddin v. District Magistrate, Aligarh91 where the Supreme Court held that it is expected of a detaining authority while serving an order of detention, as a rule, to mention in the grounds of detention, that the detenu has a right to make a representation against the order of detention and also a right to be heard by the Advisory Board. The words and shall afford in Article 22 (5) have a positive content in matters of personal liberty. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty is of prime importance. The Court therefore held that it is imperative that the detaining authority must appraise a detenu of his constitutional right under Article 22 (5) to make a representation against the order of detention and of his right to be heard before the Advisory Board. It is significant to note that this rule of apprising detenu of his constitutional right is neither to be specifically seen in the Constitution nor in statutory provision. This judicially evolved rule shows judicial concern for ensuring constitutional rights to detenus. This is dynamic interpretation of Article 22 (5). The Supreme Court held in Dist. Magistrate, Nowgong v. Sarat Mudoi92 that it is not necessary that the specification as to supply or services essential to the community affected by the activities of the detenu for which detention is made should be given in the order of detention as it would be adequate to enable the detenu to make an effective representation if the particulars are provided in the grounds of detention which in quick succession of the detention order are served on the detenu.

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The detenu is not entitled to be informed of the confidential source of information received against him or the evidence which may have been collected against him. What is necessary for the making of an effective representation is the disclosure of the material and not the source thereof. If the order of detention refers to or relies upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu. See State of Punjab v. Jagdeo Singh93, State of Rajasthan v. Shamsher Singh94 Section 8 of the National Security Act, 1980 requires the detaining officer to communicate to the detenu the grounds on which the order of detention has been made, promptly. This has to be done as soon as possible and ordinarily not later than five days. The grounds of detention, under exceptional circumstances, can be communicated to the detenu within a period not later than fifteen days from the date of detention but when the detaining authority takes time longer than 5 days he has to record reasons why the grounds of detention could not be communicated within 5 days. The Supreme Court emphatically observed in Hem Lall Bhandari v. State of Sikkim95 that in matters where the liberty of the citizens is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of law. If the original time of 5 days has to be extended, such extension must be supported by an order recording reasons. If reasons are not so recorded the order of detention will automatically fail. Even if reasons are recorded they have to inspire confidence in the Court and are subject to legal scrutiny. If the reasons are unsatisfactory, Courts would still quash the order of detention. When the purpose of passing detention order as stated in the order and grounds on which satisfaction of Detaining Authority was reached was at variance with each other, it was held in Vijay Kumar Dharna v. Union of

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India96 that the detention is liable to be quashed as effective representation against detention was impossible. 4.10 LANGUAGE OF COMMUNICATION : As to language of communication in Harikisan v. State of Maharashtra97 it was held that in the case of a person detained by an order made under S. 3 (1) (a) (ii) of the Preventive Detention Act, 1950 in English, though it is official language of the State, it is not necessarily enough compliance with the requirements of Article 22 (5) of the Constitution. The Court observed further that if the detained person is conversant with the English language, he will naturally be in a position to understand the implications of the charge against him and to facts and circumstances on which the order of detention is based. But to a person who is not so conversant with the English language in order to satisfy the requirements of the Constitution, the detenu must be given the grounds in a language which he can understand, and in a script which he can read, if he is a literate person. In order that the detenu should be in a position effectively to make his representation against the order of detention, he should have knowledge of the grounds of detention, which are in the nature of charge against him setting out the kinds of prejudicial acts which the authorities attribute to him. Communication in this context must therefore, mean imparting to the detenu sufficient knowledge of all the grounds on which the order of detention is based. Where the grounds are several, and are based on numerous speeches said to have been made by the detenu himself on different occasions and different dates any oral translation or explanation given by the police officer serving those on the detenu will not amount to communicating the grounds. Communication in this context must mean bringing home to the detenu effective knowledge of the facts and circumstances on which the order of detention is based. Where the detenu did not know enough English to understand the grounds served upon him in order to be able effectively to

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make his representation against the order of detention, there was not sufficient compliance in this case with the requirements of the Constitution, as laid down in Clause (5) of Article 22. The principle laid down in this case was followed in Hadibandhudas v. Dist. Magistrate, Cuttack98, Chaju Ram v. State of J. & K.
99

, Nainimal Pertap Mal v. Union of India100 , Surjeet Singh v.

Union of India101. In Bidya Deb v. Dist. Magis. Tripura102 a person was detained under Preventive Detention Act, 1950. Order of detention and grounds of detention supplied to detenu were in English though he knew only Bengali and Tripuri. No request was made by detenu at earlier stage and no objection as to language of grounds was raised by detenu in his original petition under Article 32 which was in English. It was held that the objection raised at stage of rejoinder could not be entertained especially when detenu was not handicapped thereby. Where detenu was illiterate person and grounds of detention were explained to him in Hindi, the language which he understood, it cannot be said that he was denied opportunity to make effective representation against the order of detention and there is no violation of Article 22 (5) as held in Bhola Bhuiya v. State of W.B. 103 Article 22 (5) of the Constitution requires that the grounds of detention must be communicated to the detenu. Communicate is a strong word. It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the ground to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22 (5) is infringed. In

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Lallubhai Jogibhai v. Union of India104 the grounds of detention in English language were forwarded to the detenu though he did not know English, therefore, the continuation of his detention was held illegal. In Devji Vallabhbhai v. Administrator, Goa, Daman and Diu105 the facts were that the petitioner did not know and could not speak or write in a language other than Gujarati. The order of detention was in English and Gujarati translation of the order was not supplied to the detenu. However, the enclosure to the order contained the grounds of detention together with the materials on which the grounds were based was in Gujarati. The Court held that though there was non-supply of the Gujarati version of the order, the grounds of detention were communicated to the petitioner in Gujarati language; so it cannot be said that the detenu was in any way handicapped in submitting his representation or there has been any violation of Article 22 (5) of the Constitution. The detenu has to be informed about the grounds of detention in a language which he understands. It was held in Tsering Dolkar v. Administrator U.T. Delhi106 that the fact that the detenu's wife knew the language in which the grounds were framed does not satisfy the legal requirement. In the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order. There was variation between Tamil and English versions of grounds served on detenu. Detenu knew only Tamil. It was held in A. Alangarasamy v. State of T.N. 107 that variation between two versions was not consequential and did not cause prejudice to detenu and so detention could not be set aside on that basis.

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It is open for the Court to consider the facts and the circumstances of a case to reasonably ascertain whether the detenu is feigning ignorance of the language or he has such working knowledge as to understand the grounds of detention and the contents of the documents furnished. This was the ruling of the Supreme Court in Kubic Dariusz v. Union of India. 108 4.11 SECOND COMMUNICATION : In State of Bombay v. Atma Ram109 it was observed by the Supreme Court that as the grounds for making the order of detention are the grounds on which the detaining authority was satisfied that it was necessary to make the order, these grounds must be in existence when the order is made. By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts. These conclusions are the grounds and they must be supplied. No part of such grounds can be held back nor can any more grounds be added thereto. After the grounds are once conveyed to the detenu there can be no addition to the grounds. The grounds being the heads, from which the government was satisfied that it was necessary to pass the order of detention, there can be no addition to those grounds because such additional grounds will be either the grounds which were not elements to bring about the satisfaction of the Government or if they were such grounds there has been a breach of the provision of the first part of Article 22 (5) as those grounds for the order of detention were not conveyed to the detained person as soon as may be. If the second communication contains no further conclusion of facts from facts, but only furnished all or some of the facts on which the first mentioned conclusion was founded it is obvious that no fresh ground for which the order of detention was made is being furnished to the detained person by the second communication. The test appears to be whether what was conveyed in the second communication is a statement of facts or events, which facts or events were already taken into consideration in arriving at the conclusion included in the ground already supplied. If the later communication contains facts leading

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to a conclusion which is outside the ground first supplied, the same cannot be looked into as supporting the order of detention and therefore those grounds are new grounds. If second communication also is made as soon as may be and it does not create a new ground then this later communication of details or facts does not infringe Article 22 (5). The adjective supplementary is capable of covering cases of adding new grounds to the original grounds, as also giving particulars of the facts which are already mentioned. If by supplementary grounds is meant additional grounds i.e. conclusions of facts required to bring about the satisfaction of the Government, the furnishing of any such additional grounds at a later stage will amount to an infringement of the first mentioned right in Article 22 (5) as the grounds for the order of detention must be before the Government before it is satisfied about the necessity for making the order and all such grounds have to be furnished as soon as may be. The second communication in the instant case though described as supplemental grounds is only particulars of the facts mentioned or indicated in the grounds first supplied which lead to the same conclusion of the fact (which is the ground furnished in the first instance) stand on a different footing. These are not new grounds. While the first mentioned type of 'additional' grounds cannot be given after the grounds are furnished in the first instance, the other types even if furnished after the grounds are furnished as soon as may be, but provided they are furnished so as not to come in conflict with giving the earliest opportunity to the detained person to make a representation, will not be considered as infringement of either of the rights mentioned in Article 22 (5) of the Constitution. The number of communications from the detaining authority to the detenu may be one or more. But the later communication should not make out a new ground. While following Atma Ram's case the Supreme Court held in Tarapada De v. State of West Bengal110 that a description of the contents of the second communication as 'supplementary grounds' does not necessarily make them

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additional or new grounds. The Supreme Court further observed that one has to look at the contents to find out whether they are new grounds. When they only furnish details of the grounds furnished to the detenu previously, they cannot be treated as new grounds. Further the fact that the details were communicated later does not necessarily show that they were not within the knowledge of the authorities when they sent the first communication of grounds. In Ujagar Singh v. State of Punjab111 the Supreme Court held it

impossible to justify the delay of nearly four months in furnishing what had been called additional or supplementary grounds. The grounds did not apparently relate to the original ground. The Court held these as new grounds and therefore to be eliminated from the consideration. 4.12 AS SOON AS MAY BE : Clause (5) of the Article 22 states that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be communicate to such person the grounds on which the order has been made. The Supreme Court in State of Bombay v. Atma Ram112 observed that the phrase as soon as may be allows the authorities reasonable time to formulate the grounds on the materials in their possession. The time element is necessarily left indeterminate. The time required to formulate the proper grounds of detention, on information received, is bound to vary in individual cases. The contingency of a second communication after the grounds are furnished is not excluded. However, the second communication should not be liable to be charged as not being within the measure as soon as may be. As the clause (5) of Article 22 prescribes two requirements, the time factor in each case is necessarily left fluid. The Preventive Detention Act, 1950 did not fix the time within which the grounds should be furnished to the person detained. It merely stated that

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the communication must be as soon as may be. The Supreme Court held in Ujagar Singh v. State of Punjab113 it meant reasonable dispatch and what is reasonable must depend on the facts of each case. No arbitrary time limit can be set down. Merely because the detenu was not simultaneously furnished with the grounds of detention along with the order of detention it cannot be said that the detenu was thereby deprived of the right of being afforded the earliest opportunity of making a representation against the order of detention as enjoined by Article 22 (5) read with S. 8 of the National Security Act, 1980. The Supreme Court held in Ashok Kumar v. Delhi Administration114 that the order of detention is not rendered invalid merely because the grounds of detention were furnished two days later. The law is that the detaining authority must, as soon as may be, i.e. as soon as practicable, communicate to the detenu the grounds on which the order of detention has been made. That period has been specified by S. 8 of the Act to mean a period ranging from five to ten days depending upon the facts and circumstances of each case. The requirement under Section 8 (1) of National Security Act, 1980 of the supply of the grounds, as soon as may be, indicates that normally the detenu is entitled to be communicated with the grounds of detention within five days. With a view to tide over unavoidable circumstances due to which the detaining authority could not have the grounds of detention supplied, the statute engrafted a leverage and directed him to record reasons therefor in writing and the administration should supply the grounds of detention before the expiry of ten days. So the delay should be exceptional and those exceptional circumstances are required to be recorded in writing. The Supreme Court observed in State of Rajasthan v. Talibkhan115 that what are exceptional circumstances is always a question of fact in each case. What is mandatory is the supply of grounds of detention before expiry of ten days but

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after the expiry of five days. It is well settled legal position that the phrase as soon as may be means within a reasonable dispatch when there is no avoidable delay. What is avoidable delay is a question of fact. 4.13 SUFFICIENCY OF THE GROUNDS : The grounds may have been considered sufficient by the Government to pass an order of detention. The question whether such grounds can give rise to the satisfaction required for making the order was held to be outside the scope of the inquiry of the Court in the case of State of Bombay v. Atma Ram.116 On the other hand, the question whether the vagueness or indefinite nature of the statement furnished to the detained person is such as to give him the earliest opportunity to make a representation to the authority was held by majority to be a matter within the jurisdiction of the Court's inquiry. The Court observed that while there is a connection between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have the earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different. For the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is whether it is sufficient to enable the detained person to make the representation at the earliest opportunity. If the grounds are not sufficient to enable the detenu to make a representation, the detenu may ask for particulars which will enable him to make the representation. Patanjali Sastri, J. in his dissent observed that it is not the province of the Court to examine the sufficiency of the grounds for the purpose of making a representation; a matter left entirely to the discretion of the executive authority. An argument in support of the liberty of the subject has always a powerful appeal but the Court, he said, should resist the temptation of extending its jurisdiction beyond its legitimate bounds. The Supreme Court reiterated in Tarapada De v. State of West Bengal117 that the sufficiency of the grounds, which gives rise to the

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satisfaction of the Government is not a matter for examination by the Court; the sufficiency of the grounds to give the detained person the earliest opportunity to make a representation can be examined by the Court, but only from that point of view. On the question of satisfaction one person may be but another may not be satisfied on the same grounds. The grounds may not be sufficient or adequate for making the representation; still they may be sufficient for the subjective satisfaction of the authority. The Supreme Court held in State of Gujarat v. Adam Kasam118 that the Court in its writ jurisdiction is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in S. 3 of the COFEPOSA Act, 1974 is the satisfaction of the detaining authority and not of the Court. The Court cannot question whether the grounds given in a detention order are sufficient or not for subjective satisfaction of the authority. This principle was reiterated in Saraswathi Seshagiri v. State of Kerala119 Explaining this principle further in Suraj Pal Sahu v. State of Maharashtra120 the Supreme Court elaborated in this way : Assuming the facts alleged to be right and there is a causal connection between the facts alleged and the purpose of detention and the formation of the opinion is not mala fide, then the sufficiency of the grounds is not germane. It has to be borne in mind that having regard to the purpose of the Act, the detaining authority must take into consideration rational, proximate, reasonable past and present and that should be the basis for the horoscope for the future so as to determine whether the person proposed to be detained comes within the mischief of the Act.

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