D.N. Chowdhury, J.
1. This is an application under Article 226 of the Constitution of India for a writ of Habeas Corpus challenging the validity of the detention of the petitioner, Shri Selton Fison Anal, who was detained under sub-sections (1) and (2) of Section 3 of the National Security Act, 1980, hereinafter referred to as the Act, 1980 for short, vide order dated 29th January, 2000. The detenu(petitioner) was served with the grounds of detention which are reproduced below :
'.. 1. That your activities in the capacity self-styled Lt. NSCN(IM) an unlawful association were prejudicial to :
(a) defence of India
(b) Security of the State of Nagaland
(c) Maintenance of Public order.
2. The particulars which have a bearing on the above three matters are specified in the Schedule attached.
3. You are also informed- that you have a right to make a representation to the detaining authority, State Government and the Central Government through the concerned Jail authorities. You have also a right to claim a personal hearing before the Advisory Board constituted by the State Government under the aforesaid Act.
.........................................'
Along with the grounds, particulars mentioned in the Schedule were also furnished to the detenu which reads as follows :
'.. That on 16.12.99 while the Security forces were conducting a mobile firsking of vehicles, one Maruti Gypsy Regd. No. NL-01-9918 was stopped and checked. On physical checking of the vehicle you were arrested and l(one) 7.62 MM Pistol (Chinese made), l(one) Magazine Live ammunition. Cash Rs. 2620, Driving Licence and BJP Membership card (photo copy) were recovered/seized from your possession and handed over to Police for being an active member of unlawful association called NSCN(IM). Police have registered a criminal case No. 0241/99 U/S 386 IPC R/W Sec. 7/8 NSR ' 62 against you and investigated.
2. That Police investigation have established a prima-facie case that you joined the NSCN(IM) in 1988 as SS Pvt. and took training for 2 1/2 months at Vawngli of Chandel District, Manipur. You were promoted to 2nd Lieutenant in 1992 and then Lieutenant in 1996. Investigation further revealed that you involved in killing of Dally Mungro AO SS Secretary, NSCN (K) and and 2 (two) others of NSCN(K) faction. You were also indulged in extortion in and around Kohima town.
3. That you joined the unlawful association of NSCN(IM) with the motive of furthering its illegal cause of cessation of the territory of Nagaland from the Union of India by waging war against the legally established Government of India. Your activities are thus found prejudicial to the Defence of India, Security of the State of Nagaland and maintenance of public order warranting your detention under preventive law.
4. That you are in judicial custody in connection with aforementioned Criminal case but the situation in the State not being conductive for expeditious disposal of such cases you may be released on bail and you may revert back to prejudicial activities. . Hence the State Government ordered your detention under the provisions of the National Security Act, 1980 to prevent you from indulging in such unlawful activities.'
2. Mr. G Uzir, learned counsel appearing on behalf of the detenu/petitioner, submitted that the right of appeal is guaranteed under Article 22(5) of the Constitution. According to Mr. Uzir, the learned counsel, the basic facts on which the order of detention was passed, were not furnished to the detenu thereby affecting his right to submit a representation for his release. Mr. Uzir further submitted that the Detaining authority only furnished its conclusions and not the grounds.
Mr. A R Borthakur, the learned Advocate General for the State of Nagaland, earlier addressed this Court on 5-9-2000. The learned Advocate General submitted that the detenu is entitled to only the grounds of detention as required under the law and the detaining Authority furnished him all the basic facts as required under the law. There is no infringement of any right of the detenu. Mr. PK Khataniar, learned Govt. Advocate for the State of Nagaland, summplementing the argument of the learned Advocate General, also took us through the grounds and submitted that all the essential facts on which the detention order was passed, were furnished to the detenu and, therefore, the detention cannot be held to be unlawful. Mr. Khataniar, the learned Govt. Advocate, also submitted that the detention order was passed with a view to prevent the detenu from acting in a manner prejudicial to (i) defence of India, (ii) security of the State of Nagaland, and also (iii) against the maintenance of public order. Mr. Khataniar, butterssing the argument of the learned Advocate General, Mr. Borthakur, submitted that the respondents/authorties did not fall behind and sedulously adhered to the procedure prescribed by law. The detenu never complained of any procedural lapses causing any form of prejudices to him in submitting the representation. Mr. Khataniar, the learned State Counsel, submitted that the basic requirements of the Act, 1980 as well as that of Article 22(5) of the Constitution, were satisfied. The detenu submitted his representation and the same was duly considered by the appropriate authority and the result of his representation was also communicated to the detenu.
A detention order will not be sustainable if the requirements of clause (5) of Article 22 of the Constitution are not complied with. When an order of detention is challenged on the ground that it contravenes Article 22(5) of the Constitution, the question for determination by the Court is not whether the petitioner was in fact prejudiced in the matter of securing his release by representation, but whether his Constitution safeguards has been infringed. Preventive Detention has made serious in-roads into the rights guaranteed to a person by the Constitution, therefore, the legal safeguards/checks against the improper exercise of the powersof preventive detention must be Jealously watched and enforced by the Court.
3. There is no such serious disputation on the part of the State Government as to the requirement of furnishing the grounds of detention to the detenu. Section 8 of the Act, 1980 makes it incumbent on the detaining authority to communicate to the detenu the grounds on which the order of detention has been made, promptly and at the earliest opportunity. The Statute has imposed a time-frame on the detaining authority for furnishing the grounds to the detenu. The provisions is enacted in the Statute as a bulwark to a person who is robbed of his cherished liberty and also to hamstring the authority from engineering the grounds of detention. The Section is to be interpreted literally and strictly and no relaxation is permissible in this regard. The aforementioned provision is in conformity with the rights guaranteed in clause (5) of Article 22 of the Constitution.
The rights guaranteed under clause 5 of Article 22 of the Constitution is two fold, viz., the communication to the detenu the grounds on which the order has been made, imparting the detenu sufficient and effective knowledge of the facts and circumstances on which the order is passed. These grounds are in the nature of charge levelled against the detenu. It discloses the prejudicial acts which the authorities ascribed on the detenu. And the other aspect of the clause (5) of Article 22 of the Constitution, is to afford to the detenu the earliest opportunity of making a representation. The requirement of furnishing the materials are to provide the detenu to submit and effective representation for persuading the detaining authority and other concerned authorities for his or her liberty proceeds with the concomittant right to receive all the connected materials including the statements and documents those are referred to in the grounds supplied, within the reasonable period. It is a Constitutional right of the detenu which is not dependent on the detenu's demanding of the documents. Grounds means something more than the conclusion. It means the conclusions drawn by the authority from the facts or particulars that/those led the authority to pass the order of detention. To conform to the provisions of Article 22(5) of the Constitution, it incumbent on the authority to communicate to the detenu the grounds on which the order of detention has been made, fully disclosing the kind of prejudicial activities in which the detenu is ascribed to be engaged in. The said obligation flows out from the later part of the provisions of Article 22(5) of the Constitution which provides for 'affording him the earliest opportunity of making a representation'. Affordingof the opportunity means that the detenu is to be afforded the right to make a representation on appraisal of the information on the basis of the which the detention order is/was passed. Sufficiency of particulars conveyed to the detenu is a Justifiable issue to ascertain that the information and the particulars those are furnished to the detenu are sufficient to enable the detained person to make a representation. The expression 'Grounds', when read in collection with the words, 'on which the order has been made', it means something more than the bare conclusion of the statement of facts. It means something fundamental. Grounds, therefore, do not merely indicate recital of the grounds and satisfaction of the authority in the language of the Statute, nor the connotation can be restricted to the bare conclusion of statement of facts. It means something more containing the factual constituents on which the subjective satisfaction of the authority is based. The basic facts and materials particulars which are the foundation for passing the order of detention, is/are required to be communicated to the detenu, of course, unless their disclosure is considered by the authority to be against public interest by ascribing reasons therefor. In addition to the conclusion(s), the authority must also communicate the primary facts upon which the conclusions were founded as distinguished from the evidential or subsidiary details. The detenu is entitled to be furnished with the grounds of detention.
In Khudiram Das v. Stale of West Bengal & Others, reported in AIR 1975 SC 550, the Supreme Court in a four Judges' Bench judgment through Shri PN Bhagwti, J., as he then was, reviewing the earlier judgments of the Court on the matters of preventive detention, re-stated the law in the following paragraphs :
'The answer to these questions does not present any serious difficulty if only we consider the reason why the grounds are required to be communicated to the detenu 'as soon as may be' after the detention. Obviously, the reason is two-fold. In the first place, the requirement of communication of grounds of detention acts as a check against arbitrary and capricious exercise of power. The detaining authority cannot whisk away a person and put him behind bars at its own sweet will. It must have grounds for doing so and those grounds must be communicated to the detenu, so that, not only the detenu may know what are the facts and materials before the detaining authority on the basis of which he is being deprived of his personal liberty, but he can also invoke the power of judicial review, howsoever limited and peripheral it may be, Secondly, the detenu has to be afforded an opportunity of making a representationagainst the order of detention. But if the grounds of detention are not communicated to him, how can he make an effective representation The opportunity of making a representation would be rendered illousory. The communication of the grounds of detention is, therefore, also intended to subserve the purpose of enabling the detenu to make an effective representation. If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvious that 'grounds' mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based. To quote the words of one of us (Sarkaria, J.) in Golam alias Golam Mallick v. The State of West Bengal. W.P. No. 270 of 1974, D/ - 12-9-1974(SC) :
'.... in the context, 'grounds' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact. It means something more. That 'something' is the factual constituent of the 'grounds' on which the subjective satisfaction of the authority is based. The basic facts and material particulars, therefore, which are the foundation of the order of detention, will also be covered by 'grounds' within the contemplation of Article 22(5) and Section 8, and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against public interest.
This has always been the view consistently taken by this Court in a series of decisions. It is not necessary to burden this judgment with citation of all these decisions. It would be sufficient if we quote the following observations of Patanjall Sastri, C.J., in Dr. Ram Krishan Bhardwaj v. The State of Delhi 1953 SCR 708 = (AIR 1953 SC 318).
'.....the petitioner has the right under Article 22(5), as interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention 'sufficient to enable him to make a representation which on being considered may give relief to him'. We are of opinion that this Constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained.'
Venkatarama Ayyar, J., also pointed out in Shamrao Vishnu Parulekar v. The District Magistrate, Thana, 1956 SCR 644=(AIR 1957 SC 23) that construing the words 'grounds on which the order has been made' in the natural and ordinary sense.'they would include any information or material on which the order was based. The Oxford Concise Dictionary gives the following meanings to the word 'grounds'; 'case, foundation, motive, valid reason'. On this definition, the materials on which the District Magistrate considered that an order of detention should be made could properly be described as grounds therefore.'
It is, therefore, clear that nothing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. That is the plain requirement of the first safeguard in Article 22(5). The second safeguard in Article 22(5) requires that the detenu shall be afforded the earliest opportunity of making a representation against the order of detention. No avoidable delay, no short fall in the materials communicated shall stand in the way of the detenu in making an early, yet comprehensive and effective, representation in regard to all basic facts and materials which may have influenced the detaining authority in making the order of detention depriving him of this freedom. These are the legal bulwarks enacted by the Constitution-makers against arbitrary or improper exercise of the vast powers of preventive detention...'
4. From a combined reading of the Article 22(5) of the Constitution and Section 8(1) of the Act, 1980 and on survey of the law evolved through the decisions of the Supreme Court, it can legitimately be held that all documents, statements and materials incorporated in the 'grounds' by reference and that have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction, must be furnished to the detenu in the language that he or she understands. The detenu's right to make a representation include his/her right to receive materials including copies of the statements and documents those are referred to in the grounds supplied. This right is not dependent upon the detenu's demand for those documents. If the detaining authority falters in supplying those within the reasonable time, that would amount to denial of detenu's guaranteed right to make an effective representation and to have it considered expeditiously, and that his continued detention would then become illegal. The documents those are or were considered by the detaining authority or considered being vital materials, if not furnished, that would vitiate the order of detention. As alluded earlier, Article 22(5) of the Constitution has two facets, -(a) communication of the grounds on which the detention has been made ; and (b) affording opportunity of making a representation against the order of detention. Communication of the grounds obviously suggests defining of the grounds, andformulation of the grounds enjoins as well as guarantees application of mind of the detaining authority to the facts and material available before it, i.e., to say, to pertinent and proximate matters to its individual case and exclude the element of arbitrariness and perfunctory exercise of powers. Where the Statute entrusts upon an authority to detain a person on its subjective satisfaction, a duty is cast on it to apply its mind to the relevant and proximate matters only, avoiding the irrelevant and extraneous considerations. A duty is also cast on the defined authority not only to communicate its decision but also the grounds on which the decision is founded. As a consequence, the grounds communicated should pertain to pertinent and proximate matters and also comprise all the facts and materials those were acted upon by the Statutory functionary in issuing the order of detention. The Constitution as well as the Statute repose an obligation on the detaining authority to communicate the grounds of detention to the detenu. The grounds communicated, therefore, must include the factual materials in its entirity as were considered by the detaining authority and not merely the inferences of facts arrived at by the detaining authority. The opportunity to be afforded for making representation against the order of detention, carries with it a duty on the detaining authority to inform the detenu all the facts those were taken into account against him in arriving at the decision to detain him. The detenu, thus, is not only to be informed about the inferences of facts, but also the factual materials which persuaded the detaining authority to pass the order of detention. Failure on the part of the detaining authority to do so, will rob the right of the detenu to submit an effective representation solemnly guaranteed by the Constitution and the Constitutional right becomes illusory. The grounds must be self-sufficient and self-explanatory. [Ref. Icchu Devi Choraria v. Union of India, (1984) 4 SCC 531; Smt. Shalini Soni & Others v. Union of India & Others, (1980) 4 SCC 544).
5. It is true, as contended by the learned Advocate General, that those who are responsible for maintenance of National security or maintenance of public order, must be the sole judge of what the National security or public order requires. That, sufficiency of the grounds is not for the Court to judge, but for the detaining authority for formation of the subjective satisfaction. However, the Court can undoubtedly look into as to whether the order of detention prima facie conforms to the requirements of the Statute. The Court can always examine as to whether the requisite satisfaction was arrived at by the authority or not; if it is not, the condition precedentfor exercise of the power would not be fulfilled and exercise of the power would be ultra vires the Statute. Before passing an order of detention under Section 3(2) of the Act, 1980 there must exist materials to show that the detenu would act in a manner which is prejudicial to the security of the State or in any manner which is prejudicial to maintenance of public order, etc. The subjective satisfaction should be based on some pertinent materials, so as to enable the authority to form an opinion that the detenu would act in a manner prejudicial to the maintenance of public order, security of the State, etc.
We also fully agree with the contention made by Shri Khataniar, the learned Govt. Advocate for the State of Nagaland, that this Court while exercising the powers under Article 226 of the Constitution do no act as an appellate authority against an order of preventive detention. But at the same time, it must be said that the Court is entrusted with a duty to protect the encroachment upon the fundamental rights and to uphold the rule of law. There is no such thing as 'unfettered' discretion immune from judicial review. In a Government under the law, there can be no such thing as un-reviewable discretion. In the particulars, mentioned in the instant case, stating the foundation of the grounds for detention, only indicate that the petitioner is a member of an unlawful association, viz., NSCN(IM), formed with the motive of furthering its illegal cause of cessation of the territory of Nagaland from the Union of India by waging war against the legally established Government of India.
Simply because one is a member of an unlawful association, it will not attract Section 3(2) of the Act, 1980 without disclosing the prejudicial activities having a nexus with public order or the security of the State. Paragraph 1 of the particulars, only indicate about the arrest of the detenu in connection with Criminal Case No. 0241 of 1999 under Section 386 IPC r/w Section 7/8 of the Nagaland Security Regulation, 1962 and seizure of one 7.62 MM Pistol (Chinese made), one Megazine Live ammunition, cash amounting to Rs. 2620, Driving Licence and BJP membership card. The activities cited in the other paragraphs, as extracted hereinbefore, are relatable to law and order only and nothing beyond it. Mr. Khataniar, however, emphasised on paragraph 2 of the particulars which indicated involvement of the detenu in the killing of Dally Mungro Ao, SS Secretary. NSCN(K), and two other of the NSCN(K) faction, and the involvement of the detenu in extortion in andaround the Kohima town. Merely indulging in extortion in and around the Kohima town without something more, will not per seattract Section 3(2) of the Act, 1980. The aforementioned grounds of detention as relied upon by the detaining authority emanated from the investigation, as referred to in the Schedule to the grounds of detention, but no investigation report was furnished to the detenu. Investigation report is the basis on which the detention order was made and, therefore, non-furnishing of the aforesaid investigation report amounted to denial of his right under Article 22(5) of the Constitution to the detenu. Paragraph 3 of the Schedule to the Grounds of detention, dealing with the conclusion of the detaining authority for preventing the detenu from indulging in activities prejudicial to the defence of India, security of State and maintenance of public order, do not mention the particulars of the unlawful activities prejudicial to the security of the State, which amounted to not furnishing adequate materials to the detenu to submit an effective representation against his detention. It may also be stated herein that being a member of an unlawful association itself incurs penal liability under Section 10 of the Unlawful Activities (Prevention) Act, 1967.
In view of the circumstances stated and the discussions made above, the continued detention of the detenu/petitioner cannot be sustained. Accordingly, the petition is allowed and the detenu/ petitioner, Shri Seltun Fison Anal, be released forthwith unless he is required in connection with any other case.