The competent authority while considering the representation is not required to pass a speaking order but it must reflect that there has been real and proper consideration of the representation, the Bench said.
The Supreme Court on Friday, in Union of India vs. Saleena, has set aside a Kerala High Court order which had granted the writ of habeas corpus directing the detenu who was detained under COFEPOSA Act to be set at liberty. The Apex Court Bench comprising of Justices Dipak Misra and Prafulla C. Pant, however said that detaining authority should re-examine the matter keeping in view the principle stated in Sunil Fulchand Shah case and Chandrakant Baddi case within two months.
The Division Bench of Kerala High Court had ordered release of Detenu on two grounds viz. the order rejecting the representation made by the Detenu was conveyed by under Secretary and not the competent authority the decision of the competent authority was not communicated and that it was not properly considered which violated his fundamental right under Article 22(5) of the Constitution of India.
Adjudicatory order need not be passed while rejecting representation
The Bench observed that it is not correct to treat the issue of communication of rejection of the representation by the competent authority or incorporation of the order passed by the competent authority in the order of communication as a constitutional safeguard and the only relevant thing to see is whether the representation submitted by the detenu has been rejected in a mechanical manner without application of mind. The Court then perused the relevant file. Upon perusal of file, the Court said that all the assertions made in the representation were commented by the Under Secretary and every aspect has been stated in detail.
The Court, referring to The Constitution Bench ruling in in Haradhan Saha, further observed that The competent authority while considering the representation is not required to pass a speaking order but it must reflect that there has been real and proper consideration of the representation.
Lekha Nandakumar case not correct position of law
The Court observed that decision in Lekha Nandakumar by the Division Bench of the High Court stating the principle that the order passed by the competent authority should be communicated failing which there will be a violation of the constitutional command engrafted under Article 22(5) is not correct. The Court can always call for the file and peruse whether there has been rejection of the representation as required under the law, the Bench said.
The Court also said that the extended proposition in Babu vs. State of Kerala case is also not legally correct as the jurisdiction of the court is only to see whether there has been any subjective satisfaction that the proper law had been applied at the time of detention of the detenu. There is no need on the part of the competent authority to pass a speaking order and to give reasons on any facet.
Subjective Satisfaction test
The Bench further observed “We may ingeminate that when the material, the file, the representation and the comments on the representation were produced before the authority and he had mentioned in the order that he had gone through the representation and not found sufficient ground for exercising the power under Section 11 of the COFEPOSA Act, it cannot be said that there has been no subjective satisfaction.”
Read the Judgment here.