Writ Petition At Pre-Detention Stage : Madras HC Doubts Correctness Of SC Decision In 'Subash Popatlal Dave' Case

A Single Judge Bench comprising Justice GR Swaminathan of the Madras High Court (Madurai Bench) has expressed its reservation over the correctness of a three-Judge Bench decision of the Supreme Court in Subash Popatlal Dave case (2012), which overruled another three-Judge Bench judgment in Sayed Taher Bawamiya case (2000). Both the decisions pertain to the scope of power of a High Court to exercise its writ jurisdiction under Article 21 of the Constitution at a pre-detention stage, as permitted in the case of Alka Subhash Gadia. BackgroundIn Addl. Secy. To Govt. of India v. Alka Subhash Gadia, 1992 SCC Supp 496, the Supreme Court had made it clear that writ jurisdiction may be exercised even at a pre-detention stage, if the High Court is of the view that there is a potential threat of violation of a person's fundamental right under Article 21 of the Constitution. The judgment also identified following contingencies for interfere at a pre-execution stage: that the impugned order is not passed under the Act under which it is purported to have been passed;that it is sought to be executed against a wrong personthat it is passed for a wrong purposethat it is passed on vague, extraneous and irrelevant grounds;that the authority which passed it had no authority to do so. A controversy thereafter arose as to whether the order of preventive detention at a pre-execution stage can be challenged beyond the five grounds as aforementioned. In Sayed Taher Bawamiya v. Joint Secretary, (2000) 8 SCC 630), a three-Judge Bench of the Supreme Court comprising Justices B Kirpal, A Mishra and R Pal affirmed that it is only in the five types of instances set out in Alka Subhash Gadia case, the Court may exercise its discretionary jurisdiction under Article 226 or Article 32 of the Constitution of India at the pre-execution stage. Subsequently, the correctness of this decision came to be doubted by a Division Bench of the Supreme Court in Deepak Bajaj v. State of Maharashtra, AIR 2009 SC 628, which cast doubts on the proposition that grounds laid down in Alka Subhash Gadia (supra) are exhaustive and not illustrative. The issue finally came up for consideration before a three-Judge Bench in Subhash Popatlal Dave v. Union of India, (2012) 7 SCC 533. In this case, Justices Altamas Kabir, Gyan Sudha Misra, and J. Chelameswar opined that the issue as to whether a detenu has a right to challenge his detention at the pre-execution stage on grounds other than those set out in Alka Subhash Gadia's case (supra), requires further examination. It noted that various factors, such as staleness of grounds, absence of a live-link between alleged and grounds of detention, etc. were not before the Court while deciding Alka Subhash Gadia's case (supra). It therefore passed an order for re-constitution of the Bench. The AnomalyIn his order, Justice Swaminathan traced this controversy and found that even though an order for re-constitution of the Bench was passed in Subhash Popatlal Dave (supra), the same never happened and the same Bench comprising Justices Altamas Kabir, Gyan Sudha Misra, and J. Chelameswar proceeded to overrule the Sayed Taher Bawamiya case. "They clearly indicate that the Three-Judges wanted to reexamine the issue. They specifically held that the issue requires further examination. The Bench was ordered to be reconstituted only for the purpose of conducting further examination. But when the very same Bench sat again, they proceeded on the premise that the issue had already been decided!" he noted in the order. Another anomaly which Justice Swaminathan noted is that a Bench of same size as was in Sayed Taher Bawamiya case, overruled that decision. Expressing reservation on this, Justice Swaminathan said, "When Sayed Taher Bawamiya case was by a Three-Judges Bench, a coordinate Bench of the same strength cannot overrule the same." This irregularity has come to light in a writ petition challenging a recommendatory proposal for detention of the Petitioner under the COFEPOSA Act, at a pre-execution stage. Whereas the Judge has taken note of the anomaly in the two decisions, he was spared the dilemma of forming an opinion on this issue as the plea was moved at a pre-mature stage and did not warrant adjudication. The Judge remarked, "Before me, there are two decisions, namely, Sayed Taher Bawamiya v. Joint Secretary reported in (2000) 8 SCC 630) and Subhash Popatlal Dave V. Union of India reported in (2014) 1 SCC 280. Of course, the easier and convenient course would be to say that the later decision must be followed. However, I have been spared the dilemma. The learned Government Advocate appearing for the first respondent informs me that as on date, no detention order has been passed against the writ petitioner. Only if a detention order has been passed, the question of considering whether the pre-execution ...

Writ Petition At Pre-Detention Stage : Madras HC Doubts Correctness Of SC Decision In 'Subash Popatlal Dave' Case

Akshita Saxena

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