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Constitutional LawSupreme Court of India

Union of India v. Nisar Pallathukadavil Aliyar

Special Leave Petition (Criminal) · 2019 INSC 941Decided 21 Aug 2019
Special Leave Petition (Criminal) No. 7016 of 2019
Justice Uday Umesh Lalit · Justice R. Subhash Reddy

Background

The respondent was detained under the COFEPOSA Act (a preventive detention law for economic offences) on 17.05.2019. After an earlier related detention order had been quashed by the Bombay High Court and then that quashing itself was set aside by the Supreme Court, the matter was referred to a statutory Advisory Board under Section 8 of the COFEPOSA Act. The Advisory Board opined there was no sufficient cause for continued detention. The Union of India, unhappy with this opinion, filed a petition directly in the Supreme Court challenging the Advisory Board's opinion itself, along with connected petitions involving another detenu.

Decision Breakdown

The Supreme Court held that the opinion of a COFEPOSA Advisory Board is neither a judicial nor a quasi-judicial decision but purely advisory: it is not a "tribunal" decision subject to challenge under Article 136 of the Constitution. Relying on earlier Constitution Bench and three-judge bench precedents, the Court held such advisory opinions, when favourable to the detenu, are binding only on the government (obliging release), and cannot themselves be challenged by the government in court. Accordingly, the Union's petition challenging the Advisory Board's opinion was dismissed as not maintainable, and the connected writ petitions concerning the other detenu were disposed of in line with the Board's similar opinion in that case, without needing separate orders.

Lesson Learnt

When a statutory Advisory Board under a preventive detention law finds no sufficient cause for someone's continued detention, that opinion is final and binding on the government to secure release: the government cannot go to court to challenge or overturn a favourable advisory opinion.

Union of India v. Nisar Pallathukadavil Aliyar – Legal Case Shots | LegalAware