Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. set aside the detention order passed by respondent 2-District Magistrate, Baramulla and ordered the detenu to be released from preventive custody.

In the present case, the petitioner had challenged a detention order passed by respondent 2 whereby the petitioner was taken under preventive custody. The respondent had also filed a counter affidavit wherein they resisted the petition by pleading that the detention order was passed by following the procedure under the law.

Learned counsel for the respondent, Asif Maqbool, produced the detention record to lend support to the stand taken in the counter affidavit.

Learned counsel for the petitioner, Mir Shafaqat Hussain, pointed out that the detenu had been shown involved in various FIRs but the fact that he had already been admitted to bail in these FIRs had not been mentioned though the mention of the FIRs was made. This showed that all the circumstances and materials were not examined. A person involved in a criminal case could be detained under the provisions of preventive laws provided there were compelling circumstances to do so. Preventive detention is an invasion to personal liberty which infringes the right to liberty guaranteed by Article 21 of the Constitution of India. Preventive detention, in view of exception to Article 21, has to be reasonable, should not be on the ipse dixit of the detaining authority.

While relying on Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, it was pointed out that the procedural requirement are the only  safeguard available to the detenu, therefore, the procedural requirement should be strictly complied with, it was the duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If the record suggested that there was non-application of mind, which ipso facto meant that subjective satisfaction was missing.

Due to the cumulative effect of the above discussion, it was held that, the impugned order of detention passed by respondent 2 was not valid. The order was set aside directing that the detenu be released from the preventive custody.[Shahid Ahmad Tantray v. State of J&K, 2019 SCC OnLine J&K 422, decided on 08-05-2019]

Case BriefsHigh Courts

“Viewing Hindi or English as the only language does not seem to be the Constitutional mandate and it is with this end in view that our Constitution framers chiselled and shaped Article 348 of the Constitution of India.”

Patna High Court: The Three-Judge Bench of Amreshwar Pratap Sahi, CJ., Ashutosh Kumar and Rajeev Ranjan Prasad, JJ., was hearing a reference that came to this Bench from a writ petition (seeking issuance of writ of habeas corpus challenging a detention order) drafted in Hindi.

The instant reference came to this Court when a Division Bench of this Court in the present case, was in disagreement with another Division Bench judgment in Binay Kumar Singh v. Bihar State Electricity Board, 2010 SCC OnLine Pat 2286 wherein it was held that there is no prohibition under Article 226 and 227 of the Constitution of India, for institution of an application in Hindi.

The issue under reference was whether a writ petition under Article 226 and 227 of the Constitution of India could be filed in Hindi language and Devanagari script.

The issue raised before the Bench related to interpretation of the language employed in Notification No. 3/Hi 3-5043/68-185-Ra dated 09-05-1972 which “authorises the alternative use of Hindi language in the High Court in following proceedings:- (1) For arguments in civil and criminal cases before Patna High Court. (2) For submitting application with affidavits: However English shall continue to be used for applications submitted under Article 226 & 227 of the Constitution of India as an exception. Annexure attached to the applications shall not be required in English. Similarly, application connected with the tax reference shall continue to be submitted in English as well. In Special cases the Patna High Court may make an order to translate Hindi papers into English….”

The Court delivered three separate judgments. But Kumar and Prasad, JJ. in a ‘post-script’ endorsed the opinion of Sahi, CJ.

Amreshwar Pratap Sahi, CJ.

While spoken language in the Court includes native vernacular expressions but written language in the High Court was governed by the Rule 1 of Part-II under Chapter III of the Rules of the High Court at Patna which states that “Every application to the High Court shall be by a petition written in the English language.”

Article 343 of the Constitution states that Hindi shall be the official language of the Union; but Article 348 states that all the proceedings in the Supreme Court and every High Court shall be in English language, subject to Article 348(2) which categorically authorizes use of Hindi language or any other language for any official purposes in proceedings in the High Court.

He remarked that “even though the propagation of Hindi as a National language has seen a growth and adoption in the official work of the Union as well as a large number of the States, but so far as the judiciary is concerned, the use of the English language in all the High Courts of the Country as well as the Supreme Court continues to be English. The wide availability of legal expressions in the English language has not yet been perfectly substituted in any other regional language including Hindi.” He further expressed that “use of language is to be a matter of practice and to be inculcated from childhood to adolescence and beyond. This includes the use of language at home, in school and in the official curriculum.”

He opined that the general acceptability of the English language obligates its usage in order to maintain a uniformity of expression of ideas. He also pointed out that the use of Court language, particularly in higher judiciary, is of significance as it involves interpretation of laws that have come into existence with a global participation between different countries throughout the world.

It was opined that the introduction of a language to be used in Courts is to be directly in tune with the opportunities given to the students of law to educate; and the curriculum prescribed by the Bar Council of India clearly defines the medium of instruction in all law courses as English. The practicality of the issue at hand needs to be judged from the point of view of adaptability of Hindi by following it even in courses imparted by law colleges.

He observed that pleadings before a Writ Court in written language have to be understood in the authoritative language for an additional reason because the High Court under Article 215 of the Constitution is a Court of record. The wide nature of powers exercised by the High Court engulfs within itself the entire canvas of the population which may not include those which are yet to acquire any proficiency in the Hindi language. It was for this reason that the maintenance of records in the English language, was incorporated in the High Court Rules.

The Notification was issued in the exercise of powers under Article 348(2) of the Constitution, and thus it did not suffer from any infirmity. It was opined that the Apex Court in Dr Vijay Laxmi Sadho v. Jagdish, (2001) 2 SCC 247 had categorically held that even though the High Court Rules are framed in exercise of power under Article 225 of the Constitution of India yet they do not occupy a higher pedestal that the Constitutional mandate under Article 348 (2) and the Notification issued thereunder.

Sahi, CJ. held that Hindi has not been provided as an alternative language in respect of writ petitions under Article 226 and 227 of the Constitution of India and tax references. According to the plain meaning of the words used in the Notification, such pleadings presented for official use have to be necessarily in English and the same is fortified by the Rules of the High Court. However, he opined that there was no express prohibition regarding use of Hindi to the exclusion of English. It is open to a litigant to present his pleadings in Hindi but the authoritative text of it has to be in English to the extent as provided for in the Notification.

He observed that the question was not that of conflict of supremacy of any language but its viability and purpose as a use of Court language in certain classes of petitions. From that point of view, the Constitutional mandate has been always treated Hindi as an official language. For Court proceedings Hindi is practically a parallel language and is also spoken in the Patna High Court. There is no statutory or Constitutional bar for advancing oral submissions in Hindi. Thus, Hindi is not an alternative language but a language available as an elective option at the privilege of the user in Court proceedings subject to the limitation as contained in the Notification. Reliance in this regards was placed on Swaran Singh Bagga v. N.N. Singh, 1995 SCC OnLine Pat 274 where it was observed that there is no bar for any person to file an application in Hindi nor there is any bar for any person to advance argument in Hindi.

Sahi, CJ. remarked that that English language was being primarily used for training legal brains not only because of its historical past but also because of the global impact of the language of English in today’s context when laws from all over the world are being referred to in courses of study including International Law, Commercial Law and the like the translation of this massive global information into Hindi Devnagari script may not be possible in the near future nor such effective translation was available so as to train legal minds in Hindi. The voluminous material of legislations, documents, curriculum, sources of law, etc. in English could be translated overnight with exactitude for the use in educational institutions or even in Courts of law, as all of it formed a substantial basis of both legal education and continuing legal education. Thus, the use of material in English for advancing the cause of justice cannot be substituted overnight.

Sahi, CJ. approved the reasoning of Swaran Singh Bagga as correct and held that “so long as the notification dated 09-05-1972 was not modified, rescinded or substituted in any form, a petition under Article 226 and 227 of the Constitution of India or a tax reference can be filed in Hindi but it would have to be accompanied by an English version as well, which shall be the authentic version of the petition.

Ashutosh Kumar, J. held that a writ petition under Articles 226/227 of the Constitution of India can be filed in Hindi language also.

He opined that on reading the notification as a whole, the necessity of permitting use of Hindi as an alternative language, in terms of Article 348(2) and in obedience to the directives in Articles 350 and 351 of the Constitution was reflected.  He parted with the observation that “in the present day scenario, with the growth of education and the impact of globalization, it can hardly be said that English is not intelligible to the masses.”

Rajeev Ranjan Prasad, J. held that an application under Article 226 and 227 of the Constitution of India may be filed in Patna High Court only in English language, directing the State Government to look into the Special Directives as contained in Article 351 of the Constitution of India and come out with appropriate notification.

His opinion was based on perusal of the Constituent Assembly Debates which reflected division of opinion with respect to national language. He observed that English common law was the basis of Indian legal system and, to that end, the English language had been a useful medium of thought and expression. If the High Court adopts a local language, then it would be difficult for High Courts to cite judgments of other High Courts. Difficulty would also arise in the functioning of Supreme Court if the High Courts were to adopt different languages.

Concluding their opinions, Prasad and Kumar, JJ. in a ‘post-script’ endorsed the opinion of the Sahi, CJ. and held that “We, after having revisited our respective opinions, have come to the conclusion that the interpretation of the notification of 1972 given by Hon’ble the Chief Justice serves the twin purposes of pandering to the aspirations of preserving and promoting Hindi language and at the same time maintaining the exclusivity of the court language to English, for the benefit of the accessibility to an ever burgeoning case materials, case laws and research works in the area of law, which is mostly in English language and which is necessary in the background of the diverse, multicultural and multi linguistic country that we are in.”[Krishna Yadav v. State of Bihar, 2019 SCC OnLine Pat 594, Order dated 30-04-2019]

Case BriefsHigh Courts

Manipur High Court: A Bench of Lanusungkum Jamir and Kh. Nobin Singh, JJ., released Kishorchandra Wangkhem, the 39-year old journalist who was detained under the National Security Act, 1980 for criticising the Government through Facebook posts.

At about 2 pm on 27-11-2018, Kishorchandra was picked up by some unidentified persons on Police uniform and brought to Imphal Police Station where he was detained for about 5 hours. On the same day, a detention order under NSA was passed against him by the District Magistrate, and he was taken to Manipur Central Jai, Sajiwa, where he had been lodged since.

S. Chitranjan, Advocate led arguments on behalf of Kishorchandra and challenged his detention under NSA as illegal and unlawful contending that he did not get a chance for making an effective representation against his detention. Per contra, N. Kumarajit, Advocate General of Manipur and S. Suresh, Additional Solicitor General appearing for the Union of India supported the detention order.

The primacy issue in focus was: whether the detention order date 27.22.2018 stood vitiated due to non-supply of the picture with captions alleged to have been posted by the petitioner on his Facebook wall on 7.8.2018 and non-supply of the duplicate copy of the CD containing four video clips relied on by the DM, thereby preventing the petitioner from making an effective representation before the concerned authority?

The High Court found that the pictures in controversy and the CD concerned, which found mention in the ‘grounds of detention’ were not supplied to Kishorchandra. This, as per the Court, prevented the petitioner from making an effective representation against his detention. The Court said: “We have, therefore, no hesitation to come to the conclusion that non-furnishing of the pictures with copies alleged to have been posted by the petitioner on his Facebook wall on 7-8-2018 and compact disc containing four video clips, vitiates the very detention order dated 27-11-2018.”

In such view of the matter, the writ petition filed by Kishorchandra Wangkhem was allowed and the detention order passed against him under the National Security Act was set aside. He was directed to be set at liberty forthwith unless wanted in other cases. [Kishorchandra Wangkhem v. State of Manipur, WP (Crl.) No. 18 of 2018, dated 04-03-2019]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of K.N. Phaneendra and K. Somashekhar, JJ. hearing a petition in the nature of habeas corpus, refused to interfere with the detention order passed against petitioner herein finding no reasons, therefore. 

The instant petition sought quashing of detention order passed against the detenue-petitioner on the sole ground that the said order was vitiated as the documents furnished to him were illegible. It was averred that the order was violative of Article 22(5) of the Constitution of India as the procedure followed had affected his right to make meaningful representation.

The Bench took note of Apex Court’s judgment in Union of India v. Mohammed Ahmed Ibrahim, 1993 Supp (1) SCC 405 where it was held that if the detenue alleges supply of illegible documents by detaining authority, then the extent and nature of illegibility and its effect on his right of representation must be considered by Court. 

In the present case, the Court opined that the test was to determine that whether the illegible portion supplied to petitioner was so relevant that because of that portion alone he could not make proper representation before the Advisory Board or government. 

It was found that the illegible portions supplied to the petitioner were merely bail orders passed in his favour by the competent authority. Hence, finding no explanation from the petitioner, his petition was dismissed. [Vijaya v. Commissioner of Police, 2018 SCC OnLine Kar 3200, Order dated 04-12-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Single Judge Bench of Rashid Ali Dar, J., allowed the petition which challenged the order of the district judge of preventive custody.

The detenue was arrested from his home for the commission of offences punishable under Section 121-A RPC, 7/25 Arms Act and 13 ULA (P) Act and while in custody impugned order of detention was issued.

The contention of the petitioners forwarded by Mr Mir Shafaqat Hussain was that the Grounds of detention stated were vague, non-existent and unfounded. Thus the respondents were stated to have violated the procedural safeguards as provided under Article 22(5) of the Constitution of India and to have ignored to provide material relied upon by the detaining authority.

The contention of the respondents was that activities of detenue were highly prejudicial to the security of the State and also that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him.

The Court considering the fact that the respondents did not bring anything on record to indicate that the copy of the FIR, statements recorded under Section 161 CrPC and other material collected in connection with investigation of the case were ever supplied to the detenue, held that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Constitution of India unless and until the material on which the detention is based, is supplied to the detenue.

The petition was thus allowed. [Abdul Rashid Magloo v. State of J&K, 2018 SCC OnLine J&K 983, decided on 18-12-2018]

Case BriefsHigh Courts

Manipur High Court: A writ petition filed against the order of detention passed by the District Magistrate was allowed by the Division Bench comprising of N. Kotiswar Singh, ACJ and Kh. Nobin Singh. J.

The petition was filed against the detention order passed against appellant who was a member of Kuki National Front- President (KNF-P). The petitioner along with others, was charged for kidnapping and killing of members of another organisation. Detention Orders were passed against the appellants in furtherance of the said charges. The petitioner challenged the Detention Order contending that the provisions of Section 10 of the National Security Act, 1980 were not complied with.

The High Court perused the record as well as Section 10 of the National Security Act and found that the provisions and requirements of the said section need to be strictly complied with. Section 10 provides that the Government shall place the grounds of detention along with the representation presented by the detenu, if any, before the Advisory Board, within three weeks from the date of detention. However, in the present case, the Court found that the said provision was not complied with within three weeks of the date of detention of the petitioner. The Court held that violation of the provisions of Section 10 has prejudiced the right of the petitioner. Hence, the order of detention was liable to be quashed which was ordered accordingly. [Lalkhosem Kipgen v. District Magistrate, 2018 SCC OnLine Mani 38, dated 07-05-2018]

Case BriefsHigh Courts

Madras High Court: The High Court recently addressed a Habeas Corpus petition filed under Art. 226 of the Constitution of India which, called for the records ordering the detention of the detenu and subsequently for quashing them.

The facts of the case involve a certain, Prabhu @ Kili Prabhu, who had been charged with several criminal offences under the I.P.C with several police stations. In the affidavit submitted by the Police to the Detaining Officer, there was a mention of a complaint being registered by one Sundarmani wherein he alleged that the detenu had snatched a sum of 1500 and the former’s wrist watch from him by intimidating him with a knife, following which the complainant registered a case against the detenu. After consideration of the affidavit, the Detaining Officer concluded that the accused is a habitual offender and passed the detention order in question. The wife of the accused had filed this petition to quash the detention order against him.

The respondent’s side argued that the documents presented to the Detaining Officer were complete and sufficient to reach to the decision of passing a detention order against the accused.

The petitioner’s side argued that even though the petitioner had given a voluntary confession, the booklet which contained his narrative was not legible and hence, that could greatly impact the rights of the detenu. Thus, this called for quashing the order. But this was refuted by the Public Prosecutor who argued that all relevant information on the booklet was legible and hence, there stood no reason to quash the order.

The Division Bench in this case held in favour of the petitioner and thus quashed the Detention Order by accepting the argument that the submission made to the Detention Officer by the Sponsoring Officer, i.e. the Police, by not being readable could greatly affect the decision of the Detention Officer. It would then be fair to quash the Order so as to not affect the rights of the detenu. [Vasanthi v. State of Tamil Nadu, 2017 SCC OnLine Mad 2925, decided on 25.07.2017]

Case BriefsSupreme Court

Supreme Court: In the matter relating to supply of the ‘grounds’ of detention to the detenue when the Court has passed the order of detention under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Court said that neither Section 3 of the Act use the term ‘grounds’ nor any other provision in the Act defines ‘grounds’. However, Section 3(3) deals with communication of the detention order and states that ‘grounds’ on which the order has been made shall be communicated to the detenue as soon as the order of detention is passed and fixes the time limit within which such detention order is to be passed. It is here the expression ‘grounds’ is used and it is for this reason that detailed grounds on which the detention order is passed are supplied to the detenue.

Explaining further, the Court said that these grounds are the ‘basic facts’ on which conclusions are founded and these are different from subsidiary facts or further particulars of these basic facts. There is only one purpose of the Act, namely, preventing smuggling and all other grounds, whether there are one or more would be relatable to the various activities of smuggling. Hence, different instances would be treated as different ‘grounds’ as they constitute basic facts making them essentially factual constituents of the ‘grounds’ and the further particulars which are given in respect of those instances are the subsidiary details.

In the present case, the High Court of Delhi had said that there various grounds which formed the basis of the detention order and even if the documents pertaining to one particular ground were not furnished, that ground could be ignored applying the principle of segregation of grounds enumerated in Section 5A of the Act and on remaining grounds the detention order was still sustainable. Agreeing with the view taken by the High Court, the bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ said that once it is found that the detention order contains many grounds, even if one of them is to be rejected, principle of segregation contained in Section 5A gets attracted. [Gautam Jain v. Union of India, 2017 SCC OnLine SC 16, decided on 04.01.2017]