State Constitutionaly Bound To Decide KAAPA Detainee's Representation Irrespective Of Pending Decision By Advisory Board: Kerala High Court

The Kerala High Court has recently held that the State Government has an independent constitutional obligation to consider a representation by a person detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) expeditiously, which cannot be kept pending subject to Advisory Board's decision. It further held that the State has violated Article 22 (5) of the Constitution by keeping the detenu's representation pending until after receiving the Advisory Board's opinion. [2026 LiveLaw (Ker) 390]A Division Bench comprising Chief Justice Soumen Sen and Justice Syam Kumar V.M. was considering a petition filed by the detenu's wife, challenging the order of detention on the ground that a representation by the petitioner with regard to the detention was not considered within a reasonable time.The Court examined the original government records and observed that the Government had not offered any explanation for delaying consideration of the representation until after receiving the Advisory Board's opinion.“If the reason for the Government's decision was to await the decision of the Advisory Board, it would fall foul of the mandate under clause (5) of Article 22 of the Constitution of India...In brief, there is a constitutional obligation on the State to consider the representations of detainees, irrespective of whether such representation was made before or after the reference is made to the Advisory Board and in any event, such representation cannot be kept pending till the Advisory Board decides the matter.The detention order thus cannot be sustained in absence of any explanation offered by the State for not considering the said representation made simultaneously, but not considered separately and only after the Advisory Board forwarded its recommendation. It is quite evident that the Government was awaiting the report of the Advisory Board,” the Court said.The Court reiterated that although KAAPA does not prescribe a statutory timeline for disposal of representations, constitutional safeguards governing preventive detention demand prompt action. The Government's obligation to consider a representation is independent of the Advisory Board's role.“There is no time limit prescribed in the KAA(P)A for the Government to consider his representation under Section 7(2) of the KAA(P)A. Similarly, no timeline is prescribed for the Advisory Board to conclude the proceeding. However, having regard to the serious consequence a person suffered by reason of preventive detention, the constitutional courts have time and again reiterated that every process should be completed within a reasonable time and there should not be not be any inordinate delay in concluding the proceeding. The law as it stands appears to be that unexplained delay in initiating the detention proceeding or in disposing of the representation may result in violation of Article 21 of the Constitution of India...Relying on the Constitution Bench decision in Pankaj Kumar Chakrabarty v. State of West Bengal (1969), as well as the High Court's earlier judgment in Kumari A.V. v. State of Kerala (2024), the Bench held that the Government cannot postpone consideration of a detenu's representation merely because the matter is pending before the Advisory Board.It said that the Government has not explained the reason for considering the representation on 6th April, 2026 along with the report of the Advisory Board dated 31st March, 2026. It said that it can be well presumed that the Government wanted to decide both the matters, namely the representation made and the report of the Advisory Board together. Observing that while there was a delay of only five days in considering the report of the Advisory Board, however, "no separate order" was passed by the Government on the representation and acceptance of the recommendation of the Advisory Board. The detenu had been classified as a "known rowdy" under KAAPA and had a history of preventive detention orders. The latest detention order was issued on 17 February 2026 following his alleged involvement in a December 2025 assault case registered at Chevayur Police Station.After his detention, representations challenging the detention were submitted to both the State Government and the Advisory Board on 25 February 2026. While the Advisory Board submitted its opinion on 31 March 2026, the Government rejected the representation and confirmed the detention only on 6 April 2026.The petitioner contended that the Government's delay of nearly 37 days in deciding the representation violated Article 22(5) of the Constitution, which requires that a detenu be afforded the earliest opportunity to make a representation against the detention order.The Court emphasised that Article 22(5) creates a dual constitutional safeguard; first, the Government must independently consider the detenu's representation, and second, the Advisory Board must separately examine the detention before expressing its opinion.The Court noted that...

State Constitutionaly Bound To Decide KAAPA Detainee's Representation Irrespective Of Pending Decision By Advisory Board: Kerala High Court

Anamika MJ

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State Constitutionaly Bound To Decide KAAPA Detainee's Representation Irrespective Of Pending Decision By Advisory Board: Kerala High Court

Anamika MJ

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Anamika MJ

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