Facts Of The Case
One petitioner named Ashok Kumar was in the Central Jail of Delhi regarding
accused in some offences. During that time, an order of detention passed against
him by the Commissioner. Then he was detained under sub-section-2 of Section-3
(Power to make orders detaining certain persons) of the National Security Act,
1980. The officer said it was necessary to prevent him for the maintenance of
All grounds of his detention was served two days after his
detention. The Commissioner reported to the Administrator about the such order
with all such grounds. After on the Administrator agreed to the detention order
and reported it to the Central Government. They informed him that he had a right
to make representation against his detention order before the Advisory Board.
The Board also confirmed the detention by sitting that there was sufficient
cause for the petitioner's detention and the order of the Police Commissioner
under sub-section-1 of Section-12(Action upon the report of the Advisory Board).
They directed he would be detained for 12 months, the maximum period of time
from the date of detention under Section-13(Maximum period of detention) of the
National Security Act, 1980. Being aggrieved by the order of the Advisory Board
the petitioner filed a writ of habeas corpus under Article-32 (Remedies for
enforcement of rights) of the Constitution of India, 1950 in the Supreme Court
of India. The detenu contested on the uninformed delay of two days in furnishing
the grounds of detention.
He said that the authority did not specify the period
of detention while making the order and the detention was not connected with
public order rather a law and order situation. A three judge bench constituted
to decide the matter on merits in the Supreme Court of India.
Ashok Kumar Vs Delhi Administration & Others
Forum- Supreme Court Of India
Jurisdiction- Writ Of Habeas Corpus Under Article 32 Of The Constitution Of
Citation No.- 1982 Air 1143, 1982 Scr (3) 707
Decided On- May 5, 1982.
Quorum- Sen, A.P. (J), Vekataramiah, E.S. (J) And Misra, R.B. (J).
Counsels- Dr. N.M. Ghatate Representing The Petitioner
O.P. Rana And R.N. Poddar Representing The Respondent
Acts Included- Constitution Of India, 1950 And National Security Act, 1980
Contentions Of The Petitioner
- First of these is that there was a denial of the constitutional imperatives of Article 22(5) the Constitution of India, 1950 read with Section 8 of the National Security Act, 1980 which cast a duty on the detaining authority to afford the detenu "the earliest opportunity of making a representation against the order of detention" inasmuch as there was unexplained delay of two days in furnishing the grounds of detention;
- Secondly, there was a failure on the part of the Commission of Police as well as the Administrator to apply their mind and specify the period of detention while making the order of detention under Sub-Section. (2) of Section 3 of the National Security Act, 1980 and therefore the impugned order of detention is invalid;
- Thirdly, the grounds of detention served on the detenu are not connected with "maintenance of public order", but they relate to "maintenance of law and order" and
- Fourthly, the facts as set out in the grounds of detention did not furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further they were vague, irrelevant and lacking in particulars.
The petitioner contended that there was the denial of the constitutional rights
provided under Article-22(Protection against arrest and detention in certain
cases) Clause-5 read with Section-8(Grounds of order of detention to be
disclosed to persons affected by the order) of the National Security Act, 1980
because of the unexplained delay of two days in furnishing the grounds of
detention. It was the right of the detenu to be supplied detention order along
with the grounds for such detention.
It was argued that delay for a day means the deprivation of life and liberty
provided under Article 21(Protection of life and personal liberty) the
Constitution. Article 22(5) itself provides that where a person is detained in
pursuance of an order of detention made under any law then 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 that. Therefore, no person shall be detained
without being informed of such grounds for detention.
On his second submission he submitted by the learned counsel representing him
that he couldn't make a representation under Article 22(5) of the Constitution
read with Section 8 of the National Security Act,1980. Without knowing the
period of detention under the order he would be prejudiced from the "right to
make an effective representation".
There couldn't be a meaningful representation against the order for his
detention but also the period of detention. He also challenged the Section-13 of
the National Security Act, 1980 as it provides a uniform period for detention
without taking care of the extent and nature of the crime, which was violated
Article 21 life and liberty read with the Article 14(Equality before law) of the
Constitution of India 1950 for its arbitrariness.
On his third contention it was submitted that the detenu's acts were not
connected with "maintenance of public order" but they related to "maintenance of
law and order". Therefore, order of detention which had been passed by the
detaining under the Act was liable to be struck down.
The National Security Act,1980 was only applied where there was to preventing
any person from acting in any manner prejudicial to the defence of India, the
relations of India with foreign powers, the security of India or for maintenance
of public order. It was further urged that the detention had no rational
connection with the object mentioned in the Act for which a person may be
detained. The facts alleged in the grounds of detention tend to show that he was
engaged in criminal activities. There was a threat that failure of the
prosecution to proceed with a trial.
The case would be ended with discharge or acquittal of the petitioner. So, the
Commissioner used the power of detention. The learned counsel for the petitioner
also submitted that the order of preventive detention under Sub-Section (2) of
Section 3 of the National Security Act, 1980 couldn't be used against any person
who was a gangster and having notorious bad characters. The detention power
exercised only as a measure for the past criminal activities of the detenu. The
activities of the detenu were not connected with any of the above mentioned
public order under the Act.
On the last submission it was contended that the facts clearly mentioned in the
detention order were vague, irrelevant or lacking in particulars. Those weren't
sufficient for forming the subjective satisfaction of the detaining authority.
Court's Observation And Findings
On the first issue the Hon'ble Supreme Court of India observed that the Article
22(5) of Constitution, the detaining authority shall furnish the grounds of
detention as soon as may be under any law provide the preventive detention. The
grounds of order shall be communicated to him as soon as possible and given
earliest opportunity to making a representation against the said order. Under
Sub section (1) of Section 8 of the National Security Act, 1980 was made in
conformity with the above mentioned Article.
It provided that when a person detained under Sub section (1) or (2) of Section
3 of the Act, shall be communicated him the grounds of detention generally
within five days of the Act and in exceptional cases not later than ten days. So
here "as soon as" means the ordinary period of five days from the order of
This was no longer a question of law as it decided by Chandrachud, C.J. in
A.K. Roy v. Union of India
, 1982 AIR 710. According to Lordship the primary
requirement of Section 8(1) is that the authority making the order of detention
shall communicate the grounds of detention as soon as may be.
Generally, under the said Act without the unnecessary delay the grounds for such
detention must communicated to the detenu. If the detaining authorities take
more than the ordinary five days but not later than ten days, then they have to
give the reasons for such delay. Here in this case the detenu served the grounds
of detention within two days of the detention order, which is the period
mentioned under Section 8 of the Act as soon as possible.
On the second issue the Hon'ble Court focused on the observations of Chandrachud,
C.J. in A.K. Roys case
, supra: "We should have thought that it would have
been wrong to fix a minimum period of detention, regardless of the nature and
seriousness of the grounds of detention. The fact that a person can be detained
for the maximum period of 12 months does not place upon the detaining authority
the obligation to direct that he shall be detained for the maximum period.
The detaining authority can always exercise its discretion regarding the length
of the period of detention." The majority decision in A.K. Roys case, supra, as
pronounced by Chandrachud, C.J. is not an authority for the proposition that
there is a duty cast on the detaining authority while making an order of
detention under sub-s. (1) or (2) to specify the period of detention.
The learned Justice made the aforesaid observations while repelling the
contention advanced by learned counsel for the petitioner that s. 13 of the Act
was violated of the fundamental right guaranteed under Article 21 read with
Article 14 as it results in arbitrariness in governmental action in the matter
of life and liberty of a citizen. By striking down the contention, the learned
Chief Justice held that any law of preventive detention has to provide for the
maximum period of detention, just as any punitive law.
The Court upheld the validity of Section 13 the Act. The learned Chief Justice
observed: "We should have thought that it would have been wrong to fix a minimum
period of detention, regardless of the grounds of detention". He further added,
"It must also be mentioned that under the proviso to s. 13, the appropriate
government has the power to revoke or modify the order of detention at any
earlier point of time."
The Hon'ble Apex Court discussed most essential point that was the detenu's acts
will fall within the domain of public order or law and order. According to them
the acts relating to national security and public order will always be decided
by the executives. The object of the detention was not to punish the detenu, but
to prevent him from doing any wrong.
The detention order may be satisfied by the suspicion or reasonable probability.
It was not to punish the petitioner. The Court also satisfied that no trial
could be done against the person because he was a dangerous gangster with
accused of a multiple number of crimes. All the activities provided in the
grounds of detention will be lead to public disorder. The situation related to
law and order sometimes due to certain acts result in serious violation of
At last the Hon'ble Supreme Court of India observed that the detention along
with the particulars of the thirty-six cases mentioned in the accompanying chart
were enough that the order was not vague. Those were not irrelevant or lacking
in particulars. Those were adequate or sufficient for the subjective
satisfaction of the detaining authority as the maintenance of public order.
The Hon'ble Supreme Court of India dismissed the above writ petition of the
detenu. They said that the alleged detention order was valid because it was
served to him within two days of his detention. There was no failure on the part
of the Commissioner of Police as well as the Administrator to apply their mind
and specify the period of detention while making the order of detention under
The activities of the detenu were falling within the purview of public order as
some of the activities may be escalated in disruption the society. All the
grounds mentioned in the chart fulfilled the subjective satisfaction of the
It is one of the landmark judgement on the issue of public order under the
National Security Act, 1980. The Hon'ble Judges decided matter with observing
the thin lines of contentions. But it is also criticized for a number of time as
the Court unanswered certain main issues.
This judgement may certainly wrong because of the passing of the detention order
against a dangerous accused who was already in jail. For the protection of
witnesses, the Commissioner used the provision and mentioned a law and order
situation as public order. The Hon'ble Court should use its judicial mind more
deeply and called for further evidences to finalise its decision.
Overall the Court was right in its decision in all other issues like the period
and communication of the grounds for effective representation of the detenu.
This case tells us that sometimes detention laws are also used to prevent the
hardcore criminals from committing any crimes.