SUBHASH POPATLAL DAVE versus UNION OF INDIA AND ANR.

Citation: [2012] 7 S.C.R. 61 · Decided: 10-07-2012 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Hearing Adjourned

Judgment (excerpt)

[2012] 7 S.C.R. 61 
SUBHASH POPATLAL DAVE 
v. 
UNION OF INDIA AND ANR. 
(Writ Petition (CRL.) No. 1.37 of 2011) 
JULY 10, 2012 
[ALTAMAS KABIR, GYAN SUDHA MISRA AND 
J. CHELAMESWAR, JJ.] 
A 
B 
Preventive Detention - Detention order - Right of a detenu 
to be provided with the grounds of detention prior to his arrest 
- Enactment of RT/ Act - Effect - Whether under the RT/ Act, C 
a detenu is entitled, in assertion of his human rights, to receive 
the grounds under which he is to be detained, even before his 
detention, at the pre-execution stage - Held: Notwithstanding 
the provisions of the RT/ Act, the State is not under any 
obligation to provide the grounds of detention to a detenu prior D 
to his arrest and detention - The provisions of the Constitution 
prevail over any enactment of the legislature, which itself is a 
creature of the Constitution - Since clause (5) of Article 22 of 
the Constitution provides that the grounds for detention are 
to be served on a detenu after his detention, the provisions E 
of s. 3 of the RT/ Act, cannot be applied to cases relating to 
preventive detention at the pre-execution stage - S.3 of the 
RT/ Act has to give way to the provisions of Clause (5) of 
Article 22 of the Constitution - Constitution of India, 1950 -
Article 22(5) - Right to Information Act, 2005 - s. 3. 
F 
Preventive Detention - Detention order - Challenge to, at 
the pre-execution stage - Scope - Whether the five instances/ 
exceptions indicated in paragraph 30 of the Atka Subhash 
Gadia's case, under which a detention order could be G 
challenged at the pre-execution stage were exhaustive or only 
illustrative - Held: The five examples indicated in Alka 
Subhash Gadia's case were intended to be exemplar and not 
exhaustive- To accept that it was the intention of the Hon'ble 
61 
H 
62 
SUPREME COURT REPORTS 
[2012] 7 S.C.R. 
A Judges in Atka Subhash Gadia's case to confine the 
challenge to a detention at the pre-execution stage, only on 
the five exceptions mentioned therein, would amount to 
imposing restrictions on the powers of judicial review vested 
in the High Courts and the Supreme Court under Articles 226 
B and 32 of the Constitution - Exercise of powers vested in the 
superior Courts in judicially reviewing executive decisions and 
orders cannot be subjected to any restrictions by an order of 
the Court of law - In various pronouncements of the law by 
Supreme Court, detention orders have been struck down, 
c even without the apprehension of the detenu, on the ground 
of absence of any live link between the incident for which the 
detenu was being sought to be detained and the detention 
order and also on grounds of staleness - These issues were 
not before the Hon'ble Judges deciding Atka Subhash Gadia's 
D case - Law is dynamic - The most precious right of a citizen 
is his right to freedom and if the same is to be interfered with, 
albeit in the public interest, such powers have to be exercised 
with extra caution and not as an alternative to the ordinary 
laws of the land - Issue relating to the right of a detenu to 
E challenge his detention at the pre-execution stage on grounds 
other than those set out in paragraph 30 of the judgment in 
Atka Subhash Gadia's case, requires further examination -
Constitution of India, 1950 - Articles 32 and 226. 
F 
The instant Special Leave Petitions and Writ Petitions 
were all directed against orders of preventive detention 
at the pre-execution stage. 
During the course of the hearing, it was submitted on 
behalf of some of the Petitioners that the decision 
G 
rendered in Alka Subhash Gadia case that a preventive 
detention order could be challenged at the pre-execution 
stage on the five grounds enumerated in the judgment, 
was no longer good law on account of the subsequent 
enactment of the Right to Information Act, 2005 (RTI Act). 
H 
A connected question which was raised was whether the 
SUBHASH POPATLAL DAVE v. UNION OF INDIA 
63 
AND ANR. 
aforesaid decision in Alka Subhash Gadia's case was per A 
incuriam, since it did not have the occasion to notice 
subsequent decisions on the same question. Another 
question which was raised was whether the five 
instances indicated in Alka Subhash Gadia's case, under 
which a detention order could be challenged at the pre-
B 
execution stage, was exhaustive or whether they were 
only illustrative. 
Directing the Special Leave Petitions and the writ 
petitions to be listed again for final hearing and dispos

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