In a recent, righteous and remarkable judgment titled D. Aswin Rao v. State & Ors. in W.P.No.1664 of 2021 and WMP No.1871 of 2021 delivered on February 4, 2021, the Madras High Court has recently held that Article 226 of the Constitution empowers the High Court to exercise its writ jurisdiction even at a pre-detention stage, if it is of the view that there is a potential threat of violation of a person’s fundamental right under Article 21 of the Constitution. A single-Judge Bench of Justice N Anand Venkatesh made this significant observation. The remarks were made while deciding a writ petition filed by one D Aswin Rao apprehending detention under the Goonda Act, 1982. The writ petition was filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, to forbear the 2nd and 3rd respondents from passing order against the petitioner now confining at Central Prison, Puzhal by detaining him under the preventive Detention in particularly Tamil Nadu Act No.14 of 1982.
To start with, a single Judge Bench of Justice N Anand Venkatesh of Madras High Court sets the ball rolling by first and foremost observing in para 1 that, “This Writ Petition has been filed for the issue of a Writ of Mandamus forbearing the Respondents from invoking Act 14 of 1982, against the Petitioner.”
While dwelling on petitioner’s case, it is then stated in para 2 that, “The case of the Petitioner is that a complaint was lodged by one Mr. Kurian Poulose before the 3 rd Respondent to the effect that the accused persons were involved in a fraudulent financial scheme and had unjustly enriched themselves to the tune of nearly Rupees Forty-Five crores. Based on the complaint, an FIR came to be registered in Crime No. 453 of 2017 for offences under Sections 406, 420 and 506(i) IPC. The FIR named one Mr. Jayaraj as the accused person and he is A1 in the present case. In the course of investigation, the involvement of the Petitioner also came to surface and he was enquired and on collecting necessary materials, the Petitioner was arrested and he was remanded to judicial custody on 02.01.2021.”
While elaborating further, the Bench then states in para 3 that, “The case of the Petitioner is that he has nothing to do with the entire transaction and he has been falsely roped in this case. According to the Petitioner, A1 has already been detained under Act 14 of 1982 and effective steps are being taken to detain the Petitioner also under the said Act. Therefore, the Petitioner made a representation to the Respondents in this regard on 21.01.2021 and he explained his position and requested the Respondents not to issue any detention order against him. Since the same was not considered, the present Writ Petition has been filed before this Court.”
To put things in perspective, the Bench then states in para 4 that, “Mr. S. Prabhakaran, learned Senior Counsel for the Petitioner submitted that there is a strong apprehension for the Petitioner that he will be detained under Act 14 of 1982 and there are absolutely no grounds to detain the Petitioner since he is not a habitual offender. The learned Senior Counsel further submitted that there is already a Criminal Case registered by the 3 rd Respondent in which the Petitioner has been added as A2 and he has been remanded to judicial custody and the Petitioner will establish his innocence in this case. The learned Senior Counsel submitted that detaining the Petitioner under Act 14 of 1982, will be in direct violation of Article 21 of the Constitution of India, 1950 (hereinafter referred to as “the Constitution”), since such a detention will be illegal and it will have adverse consequences on the life and liberty of the Petitioner.”
To buttress his arguments, what the learned Senior Counsel submits is then stated in para 5 that, “The learned Senior Counsel, in order to substantiate his submissions relied upon the following judgements:
(i) S.M.D. Kiran Pasha v. Government of Andhra Pradesh and Ors. reported in 1990 (1) SCC 328;
(ii) Selva Kumar v. State of Tamil Nadu reported in 1991 (3) MLJ Crl 516; and
(iii) Addl. Secy. To the Govt. of India v. Alka Subhash Gadia (Smt) reported in 1992 SCC Supp 496.”
On the contrary, it is then stated in para 6 that, “Per contra, the learned Government Advocate appearing on behalf of the Respondents submitted that a Writ Petition can never be entertained merely based on apprehensions. The learned Government Advocate further submitted that a writ of mandamus cannot be issued forbearing a statutory authority from performing his function. It was further contended that the Petitioner cannot anticipate that an illegal detention order will be passed against him and such anticipation cannot give raise to a cause of action to file the present Writ Petition.”
Quite remarkably, the Bench then holds in para 13 that, “The Hon’ble Supreme Court after taking into consideration all the earlier judgements again dealt with the scope of pre-execution challenge in Subash Popatlal Dave v. Union of India and Anr. reported in (2012) 7 SCC 533. The relevant portions in the judgement are extracted hereinunder:
“45. Nowhere in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] has it been indicated that challenge to the detention order at the pre-execution stage, can be made mainly on the aforesaid exceptions referred to hereinabove. By prefacing the five exceptions in which the courts could interfere with an order of detention at the pre-execution stage, with the expression “viz.” Their Lordships possibly never intended that the said five examples were to be exclusive (sic exhaustive). In common usage or parlance the expression “viz.” means “in other words”. There is no aura of finality attached to the said expression. The use of the expression suggests that the five examples were intended to be exemplars and not exclusive (sic exhaustive). On the other hand, the Hon’ble Judges clearly indicated that the refusal to interfere on any other ground did not amount to the abandonment of the said power.
46. It is only in Sayed Taher Bawamiya case [(2000) 8 SCC 630 : 2001 SCC (Cri) 56] that another three-Judge Bench considered the ratio of the decision of this Court in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] and observed that the courts have the power in appropriate cases to interfere with the detention orders at the pre-execution stage, but that the scope of interference was very limited. It was in such context that the Hon’ble Judges observed that while the detention orders could be challenged at the pre-execution stage, that such challenge could be made only after being prima facie satisfied that the five exceptions indicated in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] had been fulfilled. Their Lordships in para 7 of the judgment in Sayed Taher case [(2000) 8 SCC 630 : 2001 SCC (Cri) 56] held that the case before them did not fall under any of the five exceptions to enable the Court to interfere. Their Lordships also rejected the contention that the exceptions were not exhaustive and that the decision in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] indicated that it is only in the five types of instances indicated in the judgment in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] that the courts may exercise their discretionary jurisdiction under Articles 226 and 32 of the Constitution at the pre-execution stage.
47. With due respect to the Hon’ble Judges in Sayed Taher Bawamiya case [(2000) 8 SCC 630 : 2001 SCC (Cri) 56] , we have not been able to read into the judgment in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] any intention on the part of the Hon’ble Judges, who rendered the decision in that case, that challenge at the pre-execution stage would have to be confined to the five exceptions only and not in any other case. Both the State and the Hon’ble Judges relied on the decision in Sayed Taher Bawamiya case [(2000) 8 SCC 630 : 2001 SCC (Cri) 56] . As submitted by Mr Rohatgi, to accept that it was the intention of the Hon’ble Judges in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] 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 and 32 of the Constitution. The 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. Such powers are untrammelled and vested in the superior courts to protect all citizens and even non-citizens, under the Constitution, and may require further examination.
48. In such circumstances, while rejecting Mr Rohatgi’s contention regarding the right of a detenu to be provided with the grounds of detention prior to his arrest, we are of the view that the right of a detenu to challenge his detention at the pre-execution stage on grounds other than those set out in para 30 of the judgment in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] , requires further examination. There are various pronouncements of the law by this Court, wherein detention orders have been struck down, 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 are issues which were not before the Hon’ble Judges deciding Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] .
49. The law is never static but dynamic, and to hold otherwise, would prevent the growth of law, especially in matters involving the right of freedom guaranteed to a citizen under Article 19 of the Constitution, which is sought to be taken away by orders of preventive detention, where a citizen may be held and detained not to punish him for any offence, but to prevent him from committing such offence. As we have often repeated, 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.”
To put things in perspective, the Bench then most significantly states in para 14 that, “A reading of the above judgements makes it clear that Article 226 of the Constitution empowers the High Court to exercise its Writ Jurisdiction even at a pre-detention stage where this Court finds that there is a threat of a potential violation of the fundamental right under Article 21 of the Constitution. This Court in order to satisfy itself that there is a potential threat of violation of Article 21 of the Constitution, must have some materials before it. In other words, it cannot be based on mere apprehensions and this Court can only act on some overt acts.”
More precisely, the Bench then goes on to hold in para 15 that, “The Hon’ble Supreme Court in the above judgements has broadly identified certain grounds where this Court can interfere at a pre-execution stage. Even in these cases, the Hon’ble Supreme Court has made a specific reference to pre-detention order which is yet to be executed and which can be interfered with, in any of the following contingencies:
i. that the impugned order is not passed under the Act under which it is purported to have been passed;
ii. that it is sought to be executed against a wrong person;
iii. that it is passed for a wrong purpose;
iv. that it is passed on vague, extraneous and irrelevant grounds; or
v. that the authority which passed it had no authority to do so.”
Be it noted, the Bench then points out in para 16 that, “The Hon’ble Supreme Court in Subash Popatlal Dave also made it clear that the above five grounds are merely illustrative and not exhaustive. The Hon’ble Supreme Court recognized the fact that the power exercised under Article 226 and Article 32 of the Constitution while reviewing an executive decision can never be subjected to any restrictions and such powers are untrammeled to protect the rights of the citizens.”
Needless to say, it is then made clear in para 17 that, “In the present case, the only apprehension in the mind of the Petitioner is that since A1 has been detained under Act 14 of 1982, there are all chances of the Petitioner also getting roped in and detained under the said Act. This ground is too farfetched for this Court to exercise its jurisdiction under Article 226 of the Constitution. There is absolutely no overt act that is available for this Court to even prima facie satisfy itself that there is a potential threat of violation of Article 21 of the Constitution against the Petitioner. This Court must keep in mind that a writ of mandamus should not be issued where it indirectly restrains an authority from performing or exercising their statutory function. This Court must perform a balancing act in cases of this nature and interfering at a pre-detention stage must be far and few depending upon the exigencies in a given case. In other words, only in exceptional cases, this Court can exercise such a power.”
Now coming to the concluding paras. It is then held in para 18 that, “In view of the above discussion, this Court does not find any ground to grant the relief as sought for by the Petitioner in the present Writ Petition. The Petitioner has already given a representation in this regard to the Respondents and the same will be taken into consideration by the Respondents, if at all any action is taken against the Petitioner.” Finally, it is then held in the last para 19 that, “This Writ Petition is accordingly dismissed. No costs. Consequently, connected miscellaneous petition is closed.”
In conclusion, the single Judge Bench of Justice N Anand Venkatesh of Madras High Court makes it amply clear as to when can the writ jurisdiction under Article 226 of the Constitution may be exercised at pre-detention stage in case of potential threat to a person’s fundamental rights. We have already discussed in this judgment when it can be exercised. It also