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Ankit Ashok Jalan v. Union of India

Writ Petition (Criminal) · 2020 INSC 266Decided 4 Mar 2020
Writ Petition (Criminal) No. 362 of 2019
Justice Uday Umesh Lalit · Justice Indu Malhotra · Justice Hemant Gupta

Background

Two brothers were preventively detained under the COFEPOSA Act (a law allowing detention without trial to prevent smuggling) after being arrested in a smuggling-related case. Their detention was first quashed by the Delhi High Court, but the Supreme Court later set that aside and the detenues were taken back into custody. While their case was pending before the Central Advisory Board (a panel that reviews detention orders), the detenues sent a representation seeking revocation of their detention, but the Detaining Authority delayed deciding it for weeks, waiting for the Advisory Board's report first. The family filed this writ petition directly in the Supreme Court arguing this delay violated their constitutional right to a prompt decision on their representation.

Decision Breakdown

By a 2:1 majority, the Court (Justices Lalit and Malhotra) held that the Detaining Authority is constitutionally obligated to consider and decide a detenu's representation promptly and independently, without waiting for the Advisory Board's opinion: the two processes are separate and parallel, not sequential. Since the Detaining Authority took from 27 November 2019 to 14 January 2020 to decide the representation purely because it was waiting on the Advisory Board, this unexplained delay caused real prejudice and violated the detenues' rights under Article 22(5) of the Constitution. The majority allowed the writ petition, quashed the detention orders, and directed the detenues be released unless wanted in another case. Justice Hemant Gupta dissented, holding that once a matter is referred to the Advisory Board, it is proper for the Detaining Authority to await its report before deciding a representation, and would have dismissed the petition.

Lesson Learnt

A person held under preventive detention has a constitutional right to have their representation against detention decided promptly and on its own merits by the detaining authority: the authority cannot justify delay simply by pointing to a pending review before a separate advisory panel.

Official source (sci.gov.in)View Judgment (PDF)

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