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Synopsis

In a judgment fortifying the right to personal liberty, the Supreme Court recently held that failure to furnish copies of documents relied on by the detaining authority which would deprive the detenu to make an effective representation would certainly amount to violation of the fundamental right guaranteed under Article 22(5) of the Constitution.

A bench of Justices B R Gavai, Prashant Kumar Mishra and K V Vishwanathan set aside the Kerala High Court's March 4, 2024 judgment which dismissed a writ petition filed by Jaseela Shaji, wife of Appisseril Kochu Mohammed Shaji.

The top court quashed the detention order of August 31, 2023, passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

In the case, the bench held that non-supply of the statements affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution and as such, the detention was vitiated on the said ground.

The court clarified that it is not necessary to furnish copies of each and every document to which a casual or passing reference may be made in the narration of facts and which are not relied upon by the detaining authority in making the order of detention. 

However, "failure to furnish copies of such document/documents as is/are relied on by the Detaining Authority which would deprive the detenu to make an effective representation would certainly amount to violation of the fundamental right guaranteed under Article 22(5) of the Constitution of India," the bench said.

The bench emphasised that though the concept of personal liberty and individual freedom can be curtailed by preventive detention laws, the courts have to ensure that the right to personal liberty and individual freedom is not arbitrarily taken away even temporarily without following the procedure prescribed by law.

In the present case, the court noted that the detainee had not been provided with a key witness statement, nor had he received translations of important documents in Malayalam, his native language at the time of his detention in August 2023.

In matters pertaining to the personal liberty of the citizens, the authorities are enjoined with a constitutional obligation to decide the representation with utmost expedition. Each day’s delay matters in such a case, the bench stressed.

It also noted the delay by prison authorities in handling Shaji’s representation as it took over nine months to reach the central government, though filed in September 2023. Due to their "casual, callous and negligent approach of the prison authorities", his representation could not reach the authorities within a reasonable time, it said.

"The prison authorities should ensure that the representations by the detenu are sent to the competent authorities immediately after the receipt thereof. In the present era of technological development, the said representation can be sent through email within a day. It is further needless to reiterate that the competent authority should decide such representation with utmost expedition so that the valuable right guaranteed to the detenu under Article 22(5) of the Constitution is not denied," the bench said.

Case Title: Jaseela Shaji Vs The Union of India & Ors