Right Of Detenu To Make Effective Representation Against Detention Order Is Sacrosanct Under Article 22(5) Of Constitution- Madras HC

Noticing critical discrepancies in the detention order including conflicting dates of arrest, the absence of the remand order which is a key piece of evidence and raising concerns about the detenu's right to a fair hearing, the Madras High Court set aside the preventive detention order and ordered for securing the immediate release of detenue aged 33 years, unless required in other cases.

After careful consideration of the facts, the Division Bench of Justice M. Sundar and Justice R. Sakthivel observed that “No elucidation is required to say that if such remand order which has been specifically adverted to and relied on by the Detaining Authority in the grounds of impugned preventive detention order is not furnished to the detenu, it will impair the rights of detenu to make an effective representation. To be noted, such rights of a detenu to make an effective representation against an impugned preventive detention order is a sanctus/sacrosanct constitutional safeguard ingrained in Article 22(5) of the Constitution of India”.

Advocate S. Senthilvel appeared for the Petitioner, whereas Advocate K.S. Mohandoss appeared for the Respondent.

The brief facts of the case were that the petitioner, who is the wife of the detenu had filed a petition seeking to review and possibly overturn the detention order issued by the third respondent under the Puducherry Prevention of Anti-Social Activities Act, 2008. The petition seeks to obtain the records related to the detention order and secure the release of the petitioner's husband, who was currently confined in Central Prison, Kalapet, Puducherry. The detention order was made on the grounds that the detenu was considered a "Dangerous Person" under Section 3 of the Puducherry Prevention of Anti-Social Activities Act, 2008.

After considering the submission, the Bench observed that the remand order itself which is the key piece of evidence supporting the detention, had not been furnished to the detenu.

The Bench stated that this omission was a crucial point in the legal battle, as it directly impacted the detenu's fundamental right to make an effective representation against the preventive detention order.

While considering that the detenu's right to a fair hearing and due process had been compromised, the Bench acknowledged a critical flaw in the detention proceedings and stated that the absence of the remand order, despite being explicitly relied upon in the grounds for the preventive detention order, jeopardized the detenu's right to an effective representation, a fundamental safeguard enshrined in Article 22(5) of the Constitution of India.

Recognizing this constitutional imperative, the Bench set aside the preventive detention order, unless required in connection with other cases.

Cause Title: Porkilai v. The Chief Secretary to Government of Puducherry and Ors. [Neutral Citation: 2023: MHC: 4007]

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