SMT. KHATOON BEGUM ETC. ETC. versus UNION OF INDIA AND ORS. ETC. ETC.

Citation: [1981] 3 S.C.R. 137 · Decided: 09-03-1981 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Case Allowed

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Judgment (excerpt)

137 
SMT. KHATOON BEGUM ETC. ETC 
v. 
UNION OF INDIA AND ORS. ETC. ETC. 
March 9, 1981 
(0. CHINNAPPA REDDY AND BAHARUL ISLAM, JJ.J 
Constitution af India, I950, Article 22(5) -Whether delay in considering the 
representation made by a detenu vitiates the detention under the National Security 
Act. 
Allowing the appeals, the Court 
HELD : 1 : 1. Article 22 (5) of the Constitution en3oms a duty on the 
authority making the order of detention to afford the detenu the earliest opportu-
nity of making a representation against the order. The right and obligation to 
make and to consider the representation at the earliest opportunity is a constitu-
tional imperative which cannot be curtailed or abridged. [140 E] 
A 
B 
c 
I : 2. If the Parliament or the State Legislature making the law providing 
for preventive detention devises a circumlocutory procedure for considering 
the representation or if the inter-departmental consultative procedures are such 
D 
that delay becomes inevitable, the law and the procedures will contravene the 
constitutional mandate. 
[140 F] 
I : 3. It is essential that any law providing for preventive detention and 
any authority obliged to make order for preventive detention should adopt 
procedures calculated towards expeditious consideration of representations made 
by detenus. It will be no answer to a demand for liberty to say that administra-
tive red tape makes delay inevitable. The constitutional mandate brooks no 
unreasonable delay in the consideration of a representation. [140 G, 141A] 
I : 4. The right of detenu to have his representation considered "at the 
earliest opportunity" and the obligation of the detaining aLithority to consider 
the representation "at the earliest opportunity" are not a right and an obligation 
flowing from either the Conservation of Foreign Exchange and Prevention of 
Smuggling Activities, 1974 or the National Security Act or, for that matter any 
other Parliamentary or State law providing for preventive detention. They are a 
right and an obligation created by the very Constitution which breathes life into 
the Parliamentary or State law. 
[140 DJ 
Jayanarayan Sukut v. State of West Bengal, [1970] 3 SCR 225; Narendra 
Purshotam Umrao etc. v. B.B. Gujral and Ors., [1979] 2 SCR 315; V.J. Jain v. 
Pradhan, AIR 1979 SC 1501; Smt. Ichhu Devi Choraria v. Union of India and Ors.; 
AIR 1980 SC 1983; Ramachandra A. Kamat v. Union of India and Ors. [1980] 2 
SCR 1072; Frances Coralie Mullin v. W. C. Khambra and Ors .. [1980] 2 SCR 
I 09 5, referred to. 
· 
E 
F 
G 
ORIGINAL JURISDICTION : 
Writ Petition Nos. 293, 391 and 
392 of 1981. 
H 
(Under Article 32 of the Constitution) 
A 
B 
c 
D 
E 
F 
G 
138 
SUPREME COURT REPORTS 
[198 !J 3 S.C.R. 
M.M. Abdul Khader and Shakeel Ahmed for the Petitioners. 
R.K. Bhatt, D. Goburdhan and Miss A. Subhashini for the 
Respondents. 
The Judgment of.the Court was delivered by 
CHINNAPPA REDDY, J. These three Writ Petitions may be dis-
posed of by a single judgment since the principal question argued in 
all the three cases is one. The question is whether delay in consider-
ing the representation made by a detenu under Art. 22(5) of the 
Constitution vitiates a detention under the National Security Act and 
entitles the detenu to be released on that ground alone. 
As a result 
of a series of decisions of this Court, (1) it is now well settled that 
the representation made by a detenu under Art. 22(5) of the 
Constitution against his 
detention under the Conservation of 
Foreign Exchange and Prevention of Smuggling Activities Act, 
1974, must be considered by the detaining authority with the ut-
most expedition and that any unexplained delay in considering the 
representation will be fatal to the detention. The learned counsel for 
the State .of Uttar Pradesh urged that the rule requiring expeditious 
consideration of a detenu's representation is a judge-made rule based 
on provisions of the Conservation of Foreign Exchange and Preven-
tion of the Smuggling Activities Act, 1974, and that the extension of 
the application of the rule to cases of detention under the National 
Security Act was unwarranted. 
The learned counsel contrasted the 
provisions of the National Security Act and the provisions of the 
Conservation of Foreign Exchange & Prevention of Smuggling Acti-
vities Act, 1974, and urged that in the case of detention under 
the National Security Act, a certain amount of delay was inevitable 
having due regard to the procedur

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