Presence Of Chairman Is A Constitutional Imperative For A ‘Duly Constituted Advisory Board’ U/S. 8 KAAPA: Kerala HC

The Court clarified that an order of detention beyond the period of three months becomes illegal if the Advisory Board (consisting of a Chairman, who is or had been a Judge, and two other members, who are qualified under the Constitution) does not give its opinion on whether there was sufficient cause for detention within a period of three months from the date of detention.

A Division Bench of Justice Raja Vijayaraghavan V and Justice G. Girish observed, “In other words, if the Advisory Board does not give its opinion within a period of three months from the date of detention, the order of detention beyond the period of three months would become illegal and not otherwise. If within the period of three months, the Advisory Board opines that there was no sufficient cause for such detention, then the State Government would have to release the detenu forthwith.”

Advocate M.H. Hanis appeared for the appellants, while Public Prosecutor K.A. Anas represented the respondent.

The petitioner challenged her husband’s detention order under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAP Act) on the grounds that the detention was not approved by the Advisory Board neither was it duly constituted in accordance with the law.

According to the petitioner, the rights guaranteed to the detenu under Articles 21 and 22(5) of the Constitution of India have been infringed and on that sole ground, the detention order is liable to be interfered with.

The High Court explained that Article 22 of the Constitution provided that no law for preventive detention can be authorised for a period longer than three months, unless a duly constituted Advisory Board had reported before the expiration of the said period of three months that there is, in its opinion, was sufficient cause for detention.

“Article 22(4)(a) clearly indicates that even if the order of detention does not prescribe any period, such an order of detention cannot be in force for a period beyond three months, unless the Advisory Board before the expiration of three months opines that there is sufficient cause for detention,” it noted.

The Court remarked, “Article 22(5) of the Constitution of India envisages a dual obligation of the Government and corresponding dual right in favour of a detenu namely, (1) to have his representation independently considered by the Government and (2) to have his representation, in the light of all the facts and circumstances of the case, considered by an Advisory Board.”

The Bench explained that “it is a constitutional imperative to constitute an Advisory Board with a Chairman and two members and in every case, where a detention order has been made the appropriate Government is bound under Section 9 to place before the Board the grounds on which the order has been made and the representation, if any, made by the detenu. The Advisory Board to which a reference is so made is bound under Section 10 of the Act to consider the materials placed before it and to decide the case of the detenu and to submit a report in writing whether or not, there is sufficient cause for the detention.”

Consequently, the Court held that setting up an Advisory Board to determine whether a detention was justified or not was a “constitutional safeguard against arbitrary detention.” “Without the intervention of an Advisory Board, an independent body with persons on it of judicial qualification of a high order, detention beyond the period prescribed, has to be held to be illegal,” it held.

Accordingly, the High Court allowed the petition.

Cause Title: Rishil Farha C.P v. State Of Kerala & Ors. (Neutral Citation: 2024:KER:73156)

Appearance:

Petitioner: Advocates M.H. Hanis, P.M. Jinimol, T.N. Lekshmi Shankar, Nancy Mol P., Anandhu P.C. and Neethu. G. Nadh

Respondents: Public Prosecutor K.A. Anas

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