The issue here is about whether the grounds of detention under the COFEPOSA Act 1974 could be supplied to the detenu even before he is detained. That is to say, the controversy is whether the detenu is entitled to the grounds at the pre-execution stage of detention.
The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 empowered the Government to detain smugglers preventively. The need arose because during the early 1970s, smuggling was rampant. The Government has instituted for detention by Centre a screening committee which consists of very senior officers from five different departments to scrutinise the grounds on which the alleged smuggler could be detained. This is to ensure that there is no high handedness or bias or insufficiency in the decision to detain a person.
But the grounds are not supplied to the detenu until he actually taken in possession. This is supported by the constitutional provision of Article 22(5) which is the following, “When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order”.
This system was going on until in an important case until the practice was challenged in the Supreme Court in a case Subhash Popatlal Dave vs UOI – 2012(281)ELT 641 (SC). The petitioner argued that Section 3 of the RTI Act provides that all citizens have the right to information. The limitation of the Section 3 was provided in Section 24 which does not specifically cover the case of preventive detention. Section 8(h) which lays down that information which would impede the process of investigation or apprehension or prosecution of offenders also does not cover detenues under preventive detention law.
So the petitioners argument was that under the specific provision of Section 3 of the RTI Act, it was incumbent on the Government to supply the grounds of detention even at the pre-execution stage. It was also argued that in two cases, the grounds of detention were supplied to the detenues even at the pre-execution stage.
The Supreme Court emphasis is that the provisions of the Constitution will prevail over any enactment of the legislation which itself is a creature of the Constitution.
The Supreme Court further held that since the clause 5 of the Article 22 provides that the grounds of detention are to be served on the detenu after his detention, the provisions of Section 3 of RTI Act 2005 cannot be applied to cases relating to preventive detention at the pre-execution stage. In other words Section 3 of the RTI Act has to give way to the provisions of Clause 5 of Article 22 of the Constitution.
The Supreme Court further held that just because in two previous cases, the grounds of detention have been supplied to the detenues prior to their arrest and detention, it cannot be held that it has become a precedent. If something has been done against the law, it cannot became a precedent.
A related point which has been argued in this case by the detenu is that the validity of the detention order can be challenged even before detention on any ground and not necessarily on the five grounds only which had been specified by previous judgment by the Supreme Court in the case of Alka Subhash Gadia-1991(53)ELT481(SC).
In this judgment the Supreme Court had said that the Court can examine the validity of detention on grounds viz “where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act, (ii) that it sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague and irrelevant ground or (v) that the authority which passed it has no authority to do so. The issue was whether the expression viz means “namely” or “such as”. This means whether the five conditions are exhaustive or illustrative. The Supreme Court decided to refer this issue to a bigger Bench.
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