Whether DM's Non-Disclosure Of NSA Detenue's Right To Make Representation To Him Vitiates Process? MP High Court Refer To Larger Bench
The Madhya Pradesh High Court has referred a significant question concerning the right of representation against a detention order under the National Security Act to a larger bench for consideration.
The bench of Justice Anand Pathak and Justice Pushpendra Yadav deemed it appropriate to refer the following question to a larger bench;
"(i) Whether in view of clarification and distinction carved out by the Constitution Bench of the Apex Court in the case of Kamleshwar Ishwardas Patel (supra), D.M. has no authority to consider representation of detenue and representation can only be considered by the appropriate Government ?
(ii) Whether Full Bench of this Court in the case of Kamal Khare (supra) did not consider the law propounded by Apex Court in the case of Kamleshwar Ishwardas Patel (supra) specially in para 34 in correct perspective and wrongly held that D.M. has the authority to consider the representation ?
(iii) In view of Section 8 of the Act of 1980, where power is vested with the appropriate Government to consider representation, whether representation can only be considered by appropriate Government ?
(iv) If D.M. has not disclosed the fact that representation can be made to the D.M. also, whether it vitiates the process ?
(v) Whether judgment of the Full Bench of this Court in the case of Kamal Khare (supra) lays down correct law so far as present issue is concerned, in the light of judgment pronounced by Constitution Bench of the Apex Court in the case of Kamleshwar Ishwardas Patel (supra)".
A petition was filed under Article 226 of the Constitution seeking an exception to the order of November 4, 2025 and a subsequent order of February 4, 2026, wherein the petitioner was detained under Section 3 of the National Security Act, 1980.
The petitioner, a resident of Distrct Vidisha, was detained after a case was registered against him for obscene acts in public places (Section 296), voluntarily causing hurt (Section 115(1)), aggravated criminal initmidation (Section 351(3)), criminal conspiracy (Section 61(2)), causing disappearance of evidence (Section 238) and abetment (Section 49) of BNS.
The chain of events in this incident led the DM to issue the detention order under Section 3 of the 1980 Act. During the pendency of this petition, another order was passed extending this detention for another three months.
The counsel for the petitioner contended that the opportunity of hearing was not granted, and he was detained in the absence of cogent evidence. The primary argument of the petitioner was that after the detention order was passed by DM, he was not made aware of the fact that representation could be made before DM also, and thus the proceedings were vitiated.
The counsel for the petitioner further relied on Section 14 of the 1980 Act, which deals with revocation of the detention order. Per the petitioner, the authority that passed the order has the authority to revoke the same. Therefore, the DM was the authority for revocation of the detention besides the State Government.
Therefore, the petitioner asserted that the non-disclosure of the fact that detenue can make a representation before the DM also results in violation of the proceedings.
The bench noted that the Constitution had recognised the necessity of laws as to prevent detention, but it also provides for certain safeguards to address the harshness of the provisions. The bench emphasized,
"Article 22 lays down the permissible limits of legislation empowering the preventive detention and it prescribes the minimum procedure and that must be included in any law, which permits authority to use preventive detention in National/Public interest as provided in Statute".
The bench further rejected the petitioner's primary argument that the non-disclosure of the fact that detenue can make a representation before the DM would vitiate the proceedings.
The bench noted that once a detention order is passed, the report is forwarded to the State Government for approval. However, the order, without the State Government's approval, can only stay in operation for not more than 12 days. Therefore, the detaining authority has the power to revoke the detention order at best within twelve days.
Further, the court examined Section 8 of the 1980 Act and Section 7 of the Preventive Detention Act, 1950, observing that once a person is detained in pursuance of a detention order, then he has to be given reasons for his detention and an opportunity to make a representation before the appropriate government.
The bench further highlighted, "Therefore, even if the authority of revocation may be available to the D.M. for 12 days as outer limit or till approved by the State Govt (which can happen before 12 days even), still representation is to be made to the State Government and not to the Collector. Section 8 also mandates so".
The bench further clarified that the moment the DM passes the order and refers the matter to the appropriate Government, he becomes functus officio. Therefore, the DM would not be in a position to take any decision over detenue's representation.
Although the bench noted that the larger issue of whether non-disclosure of the fact that the detenue can make representation before the DM would vitiate the proceedings needs to be considered by a larger bench.
Thus, the bench referred the matter to be placed before a Larger Bench.
Case Title: Vikas Tiwari v State of Madhya Pradesh [WP No 327/2026]
For Petitioner: Advocates Somnath Seth and Sushil Goswami
For State: Additional Advocate General And Senior Advocate Vivek Khedkar with Government Advocate Ravindra Dixit