Judicial control over administrative discretion in preventive detention

8 August 2016

Administrative has to function according to the law and the constitution. It is a fundamental duty laid down against every administrative action that it should not violate the fundamental rights guaranteed by the constitution. For this purpose, the judiciary has an important role to play in protecting the citizen against the arbitrary exercise of administrative action. In India, the judiciary has been given an apex place. However, it is a general rule that court should not interfere with the administrative functions and actions taken by administrative authorities in exercise of discretionary powers.

It means that judiciary has no direct control over the administrative actions. Judiciary can act only when their intervention is sought. Infact judicial intervention is restrictive in nature and limited in its scope. Irrespective of this defect, the Supreme Court and high court have been intervening in the administrative actions by way of public interest litigation. Even sometimes, when the situation demands Supreme Court and high courts have authority to take up cases suo moto (on its own motion). CHAPTER-II CONCEPTUAL ANALYSIS 1. 1 DISCRETIONARY POWERS

Judicial control over administrative discretion in preventive detention Essay Example

1. 1. 1 Judicial control of administrative discretion Discretion means to act according to desire or choose from given options. Administrative discretion means choosing from amongst the variable available alternatives but with reference to the rules of reason and justice and not according to personal whims and fancies. Administrator may use the discretionary powers vested in him. This leaves the administrator free to exercise his power according to his own judgment. The exercise of discretion should not be arbitrary, vague and fanciful.

In india, while exercising discretion, the government has to measure it upon the touchstone of constitutional provisions of equality, freedom, and justice. A government needs discretion for the proper conduct of its functions. However it should exercise its power well within the constitutional limits. The actions of administration can be checked at judicial level. The constitution of india has provided the judiciary with the power to review. The courts can keep a check upon any arbitrary exercise of discretionary powers by the administration. 1. 1.

2 Reasons for conferment of discretion on administrative authorities The present day administration problems are of varying nature and it is difficult to comprehend them all within the scope of general rule. Most of the problems are new, practically of the first impression. Lack of any previous experience to deal with them does not warrant the adoption of a general rule. It is not always possible to foresee each and every problem but when a problem arises it must in any case be solved by the administration in spite of specific rules applicable to the situation.

Circumstances differ from case to case so that applying one rule mechanically to all case may itself result in injustice. 1. 1. 3 Judicial review of discretionary power Due to parliamentary supremacy no legal limits exist in England on the conferment of discretion on the administrative authorities. But that is not true of the other common law countries whose written constitution determine and regulate the competence of the legislature particularly through the enumeration of the basic rights of individuals.

The rule of law requiring that the administration can interfere with the right of an individual only with the authority of law and that the authorization is clearly limited in its content, subject matter, purpose and extent so that the interference is measurable and to a certain extent is foreseeable and calculable by the citizen. The court have consistently insisted that the legislature must observe certain constitutional limits in granting discretion to the administrative authorities but they have not insisted upon a rigid criterion. 1. 2. Judicial review of preventive detention

The question of exercising the power of judicial review incase f preventive detention was raised by Mr. Kamath during the stage of drafting ARTICLE 15A (corresponding to the present article 22) of the draft constitution. To this, dr. Ambedkar replied that a writ of habeas corpus could be asked for and issued in any case, but the object of this would be limited to the court finding out whether a man was arrested under any law or merely by executive whim. Once the court was satisfied that he was arrested under some law, habeas corpus comes to an end.

However the scope of judicial review is not unlimited because the court is bound to see only whether ARTICLE 22(5) has been complied with by the detaining authority. But it is the duty of the court to see that a law depriving the person of his liberty is strictly complied with and individual liberty is to be curtailed by anticipatory action only in the interest of that which is enumerated in the statute1. The law of preventive detention leaves a very broad discretion with administrative authorities and only a narrow margin for judicial review. 1. 2.

1 Judicial Review on Exercise of Discretion in the case of preventive detention The basic principle of administrative discretion is that administrative discretion cannot be substituted by judicial discretion In AK Gopalan vs state of madras2, it was held that decision as to whether a person shall be detained or not under the preventive detention act lies solely within the power of executive and judiciary cannot substitute such decision with its own decision. Thus, judiciary cannot go into the merits of the case and look into whether the opinion of the authority was right or wrong.

1. 3 GROUNDS OF JUDICIAL CONTROL If an administrative authority is authorized to act in its discretion it has to exercise its discretion in consonance with the purpose of authorization and the legal limits of the discretion has to be observed. An authority shall be deemed to have abused its jurisdiction when it exercises its power for an improper purpose or on extraneous consideration, or in bad faith, or leaves out a relevant consideration or does not exercise the power by itself but of the instance and discretion of someone else.

Circumstances under which judicial intervention on exercise of discretion in preventive detention Judiciary has maintained the appearance of respecting the subjective satisfaction of the detaining authority but at the same time review such power on certain grounds3. 1. 3. 1 Subjective satisfaction of the detaining authority Although the law of preventive detention is based on the subjective satisfaction of the detaining authority, it does not confer an unfettered discretion to detain any person at its whim. It is an eternal principle of administrative law that there is nothing like unfettered discretion immune from judicial reviewability.

Krishna iyer has rightly emphasized that “absolute power is anathema under our constitutional order” and that “naked and arbitrary power is bad in law”. Therefore the courts, while exercising the power of judicial review, ensure that discretion is exercised by the authority concerned according to law. It is regarded as the first principle of of any jurisprudence based on the rule of law that the executive should not exceed its powers. This is also known as the principle of ultra vires. In India, the judiciary has given an extended meaning to the doctrine of

ultra vires so as to able to control the discretionary decision of administrative authorities. In the case of preventive detention, they have always examined whether the subjective satisfaction of the detaining authority was arrived at by taking into consideration relevant facts and ignoring irrelevancies. The satisfaction of the executive must be based on right test and right construction of a statute. The satisfaction ought to be based on relevant and non-extraneous consideration 1. 3. 2 Factors on which subjective satisfaction can be challenged 1. 3. 2. 1 Non application of mind

If the subjective satisfaction is arrived at without the application of mind and authority passes the detention order mechanically. It can be quashed on this ground. E. g. If the preventive detention law specifies many grounds for detention, then the order must specify the grounds on which detention has been ordered. The order will be set aside if it mentions that the detention has been ordered on ground (a) or (b). The use of the word “or” indicates that the authority was either not certain or did not apply its mind to determine whether the case fell under one head or the other.

Case: Ayya vs state of U. P4 Facts: A Telegram was sent to the senior superintendent of police on behalf of detainee stating that the detainee has been taken into police custody about an hour before the alleged commission of the offence by him but this was not considered by the detaining authority. Judgment: it was held that the order of detention was vitiated on the ground of non-application of mind. Thus, An authority cannot use its discretion without taking into consideration the facts and circumstances of every case. Case: T. Devaki vs government of T. N

Facts: Even though the detaining authority was present at the scene of occurrence of the incident, he formed his opinion and made the detention order on a mere perusal of the materials, facts and documents placed before him by police. Judgment : it was held that detention order was vitiated by non-application of mind. Hence, It is also imperative for the detaining authority to form the perquisite opinion honestly and bonafide. It can rely on its own knowledge and perception instead of merely relying on the version of the incident placed before it by the sponsoring authority. 1. 3. 2.

2 Malafides The Supreme Court has given wide meaning to the concept of malafides exercise of power. Mala fides means imputation of bad faith, dishonest intention or corrupt motive. In kalquanmbi vs district magistrate5 held that, Like any other administrative order, an order of preventive detention is also liable to be set aside on the ground of malafides of the detaining authority. Thus, Detention orders can be challenged if made mala fide. Whenever it is established that the order of detention has been made malafides, it must be quashed and the detainee must be released. Case- G.

Sadananda vs state of kerala6 In this case, the petitioner, a kerosene dealer was detained under the Defense of India Rules, to prevent him from acting in a manner prejudicial to the maintenance of supplies and services essential to the life of community. The fact were brought before the court to show that the D. S. P. made a false report against the petitioner in order to benefit his relative in the same trade by eliminating the petitioner from the trade, by obtaining the distributorship for kerosene. The D. S. P. filed no affidavit to controvert allegations, and the affidavit filed on behalf of govt.

by the Home Secretary was very defective. The SC declared the order of detention to be clearly and plainly mala fide. Thus, In this case- the court concluded that detention of the petitioner was the result of malafides. Malafides would mean anything which is not bonafide or something that is done with an intention which is dishonest. 1. 3. 2. 3 IMPROPER PURPOSE A discretionary power must be exercised on relevant and not on irrelevant or extraneous considerations. It means that detaining power must be exercised taking in to account the consideration mentioned in the statute.

If the statute mentions no such considerations, then detentions should be exercised on considerations which are relevant for the purpose for which it is conferred. If the authority concerned takes in to account wholly irrelevant or extraneous circumstance, or matters then the administrative action is ultra-vires and will be Under the National Security Act 1980 (originally preventive detention act 1950) a person could be detained on several grounds mentioned therein. The authority detaining a person is required to communicate the grounds for detention to the detenu.

If the person is detained on any ground which is irrelevant, non-existent, extraneous, then the order of preventive detention can be quashed7. Case – Ram Manohar Lohia v. State of Bihar8 The petitioner was detained under the Defence of India Rules, 1962 to prevent him from acting in a manner prejudical to the maintenance of ‘law and order’ whereas the rules permitted detention to prevent subversion of ‘public order’. The court struck down the order as in its opinion, the two concept were not the same, ‘law and order’ being wider then public order.

The court insisted that the grounds of detention should be such as have a reasonable relation or nexus or proximate connection with the objects for which an order of detention can be made under the relevant law. SOME OF THE CASES OF REASONS ON WHICH DETENTION OF A PERSON IS ORDERED, NOT HAVING RELEVANCE TO THE GROUNDS MENTIONED IN THE ACT ARE – When a person is detained in the interest of public order, because he published pamphlets containing scurrilous attacks on the judiciary which might undermine the confidence of the people in the proper administration of justice but does not endanger law and order as such.

9 Detention of a person in the interest of maintenance of public order, because he committed a theft of overhead traction wire disrupting rail service for several hours which might interfere with the maintenance of supplies essential to the community but does not threaten the maintenance of public order10. 1. 3. 2. 4 Vague and irrelevant grounds In G. M. SHAH VS JAMMU AND KASHMIR11 A Person was detained as his activities were prejudicial to the security of the state.

It was held that security of the state contemplates that the activities of the person are such as to overthrow or overawe the government by force. The detention order was quashed because none of the facts were established on this ground. Thus, Under the act, one of the reasons for detention of a person is that his activities are prejudicial to the maintenance of public order. “Public order” is a narrow concept as compared with “law and order”.

It is not every contravention of law that can be said to affect public order. It has been pointed out by the Supreme Court that a line of demarcation has to be drawn “between serious and aggravated forms of disorder which directly affect the community or injure the public interest and relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. 12 In Raisuddin vs Uttar Pradesh13,

An order of preventive detention on the ground that the detenu creating the fear and tension in the town of Moradabad resulting in the closure of schools, colleges and shops was held not based on irrelevant grounds as his activities were greatly prejudicial to the maintenance of public order. Thus, If the act of a person creates a panic or fear in the minds of members of the public, such act must be said to have direct bearing on the question of maintenance of public order.

In Manu Bushan vs west Bengal14 The ground that the detenu committed a murderous attack on a person causing his death was held to raise only a law and order problem and therefore order of preventive detention was quashed because under the law, preventive detention was authorized on the ground of public order and not law and order. Thus, The ground of “maintenance of public order” has to be distinguished from “law and order”. In Ajay Dixit vs Uttar Pradesh15

From a review of detention cases during the last few years, it may be said that judiciary is now more prone to intervene with the administrative determination of the necessity to detain a person than before on the ground of irrelevant considerations. In Prabhdayal vs D. M.. Kammrup16 Held that, A Preventive detention order can also be quashed if it is based on vague grounds because of the reason that vague grounds affect the right of the detenu to make representation. The right to make representation is given to him by the constitution and is not illusory but not real.

Hence, Improper purpose has become an important ground to control the exercise of discretionary powers of administrative actions to some extent. 1. 3. 2. 5 Leaving out relevant consideration If in exercising its discretionary power an administrative authority ignores relevant considerations, its action will be invalid. An authority must take in to account the consideration which a statute prescribes expressly and impliedly. In Ashadevi v. K. Shivraj 17 The petitioner was detained with a view to preventing him from engaging in transporting smuggled goods.

The detaining authority based its decision on the detenu’s confessional statement before the custom officers, but the fact having bearing on the question whether his confession was voluntary or not were not placed before authority. It was held that since the authority did not consider vital facts relevant to the detention of the petitioner the detention order was bad. Thus, detention order can be quashed when no relevant grounds are considered. 1. 3. 2. 6 Mixed Considerations

In preventive detention cases, the court have taken a strict view of the matter and has held such on order invalid if based on any irrelevant ground along with relevant grounds. In Shibban Lal v. State of U. P. 18 The petitioner was detained on two grounds, first that his activities were prejudicial to the maintenance of supplies of essentials to community and second that his activities were injurious to the maintenance of public order. Later govt. revoked his detention on the first ground as either it was unsubstantial or non existent but continued it on the second.

The court quashed the original detention order. 1. 4 Limitations of judicial control All administrative actions are not subject to judicial control. There are many kinds of administrative actions, which cannot be reviewed by the law courts. Even in those administrative actions which are within its jurisdiction, the judiciary cannot by itself take cognizance of excesses on the part of officials. It can intervene only on the request of somebody who has been affected or is likely to be affected by an official action.

Judicial process is slow and cumbersome. Remedies offered by the courts are inadequate and ineffective. The government may deprive the person of the remedy granted to him by the court by changing the law or rules thereof. Judicial action is incredibly expensive and cannot therefore be taken. The highly technical nature of most of the administrative actions saps the force of judicial review. The judges are only legal experts and they may have little knowledge of the technicalities and complexities of administrative problems.

Their legal bent of mind may hinder them in arriving at a right decision. They have to follow the prescribed procedures and observe some formalities. 1. 5 PREVENTIVE DETENTION IN INDIA Article 22 makes the minimum procedural requirements which must be included in any law enacted by legislature in accordance of which a person is deprived of his personal liberty. Article 22(1) and (2) are also called Rights of an arrested person. Rights of an Arrested Person A person cannot be arrested and detained without being informed why he is being arrested.

A person who is arrested cannot be denied to be defended by a legal practitioner of his choice. This means that the arrested person has right to hire a legal practitioner to defend himself/ herself. Every person who has been arrested would be produced before the nearest magistrate within 24 hours. The custody of the detained person cannot be beyond the said period by the authority of magistrate. The Article 22(1) and 22(2) make the above provisions. However, Article 22(3) says that the above safeguards are not available to the following: If the person is at the time being an enemy alien.

If the person is arrested under certain law made for the purpose of “Preventive Detention”. The first condition above is justified, because when India is in war, the citizen of the enemy country may be arrested. But the second clause was not easy to justify by the constituent assembly. This was one of the few provisions which resulted in stormy and acrimonious discussions. 1. 5. 1 Preventive Detention Laws A person can be put in jail / custody for two reasons. One is that he has committed a crime. Another is that he is potential to commit a crime in future.

The custody arising out of the later is preventive detention and in this, a person is deemed likely to commit a crime. Thus Preventive Detention is done before the crime has been committed. 1. 5. 2 Historical background of Preventive detention in India India has a long history of “Preventive Detention”. India is one of the few countries in the world whose Constitution allows for preventive detention during peacetime. The following are some historical landmarks related to Preventive Detention in India.

In India the history of preventive detention dates back to the early days of the British rule when under the Bengal Regulation— III of 1818 (the Bengal State Prisoners Regulation) the government was empowered to detain anybody on mere suspicion. Rule 26 of the Rules framed under the Defense of India Act 1939 allowed the detention of a person if it was “satisfied with respect to that particular person that such detention was necessary to prevent him from acting in any manner prejudicial” to the defense and safety of the country .

Post-Independence, the first Preventive Detention Act was passed in 1950. The validity of this act was challenged in the Supreme Court in the Gopalan v/s State of Madras Court. The Supreme Court held this act Constitutionally valid except some provisions. This act expired in 1969, and before it expired, it was amended for 7 times, each expansion was to make it valid for 3 more years and this it was extended till 31 December 1969. In 1971, the Maintenance of Internal Security Act (MISA) was passed. MISA was basically a modified version of the PDA Act.

It was abolished in 1978. Another law, Conservation of Foreign exchange and Prevention of Smuggling Activities (COFEPOSA) was enacted in 1974 and it continued. In the heat of the terrorism in Punjab the Terrorist & Disruptive Activities (Prevention) Act or infamous TADA was enacted in 1985. It was renewed in 1989, 1991 and 1993 and lapsed in 1995 due to increasing unpopularity due to widespread allegations of abuse. The main abuse was that a confession before a police officer, even though being given under torture, was admissible as evidence in court.

Another similar act Prevention of Terrorism Ordinance (POTO) of 2001 Came into force. Both the TADA & POTO were later succeeded by another controversial. Prevention of Terrorist Activities Act (POTA) during 2002-04. This act Was supported by the NDA Government but later was scrapped by the UPA government. After the Bombay attacks of November 26, 2008 parliament enacted another anti-terror law known as Unlawful Activities (Prevention) Act. 1. 5. 3 AMBIT OF THE COURT JURISDICTION IN CASES OF DETENTION The court examines the validity of the law on the ground of competence of the legislature19.

I. e. , whether the subject matter of the legislation is covered by the legislation entry relating to preventive detention under which it is purported to have been made. When a law of preventive detention is challenged before the court, the court has got to decide on a consideration of the true nature and character of the legislation whether it is really on the subject of preventive detention or not. The court examines the grounds specified in the order of detention to see whether they are relevant to the circumstances under which preventive detention could be supported. E. g.

Security of India or of a state maintenance of public order etc. And set the detenu free if there is no rational connection between the alleged activity of the detenu and the ground relied upon such as public order. The court examines whether the grounds supplied have a relevant connection with the order and would examine the bonafide of the order and interfere if it was malafides, that is to say, if the law of preventive detention was used for any purpose other than that for which it was made20. The court examines the grounds communicated to the detenu to see if they are sufficient to enable him to make an effective representation.

Chapter -III Conclusion and suggestions It is clear from the above description and case laws that administrative discretion is like a tool or weapon without which the flawless functioning of a modern government is not possible. So administrative discretion on detaining authority has to be exercised with great caution, keeping in mind the principles laid under constitution. Thus judicial review is like a check on the powers vested upon the administrative authorities and it helps to curb the misuse of power through wrong means.

The constitution operates as a check and keeps the administration of government within the bounds of law. Since article 21 signifies that procedure prescribed by law to deprive a person of his personal liberty must be “reasonable, just and fair” it is therefore necessary that preventive detention procedure should be “reasonable, just and fair” and not fanciful or arbitrary. Thus the administration must follow strictly the procedural norms laid down in article 22(4) – (7) and also in the relevant preventive detention law. Suggestions

Since discretion amounts to misuse, procedures for preventive detention should be tightened and not the removal of power of detaining authority. Writ of habeas corpus is a remedy against illegal curtailment of freedom of individual by the administrative authority of the state though writ does not punish administrator who is the wrong doer. The person concerned must be set at liberty from wrongful confinement, who can later proceed against the wrong doer in an appropriate manner under article 226 and 32 of the constitution.

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