Supreme Court Reinforces Procedural Safeguards in Preventive Detention: The Article 22(5) Mandate

In a significant judgment upholding the sanctity of personal liberty, the Supreme Court of India quashed a preventive detention order on the grounds of an inordinate and unexplained delay by the government in deciding the detenu's representation. The Court reiterated that the right to have a representation considered 'as soon as possible' is a fundamental right under Article 22(5) of the Constitution.

Preventive detention is an exceptional power of the State that allows for the incarceration of an individual without a formal trial or conviction, based on the apprehension of future prejudicial activity. Because this power bypasses the standard criminal justice safeguards, the Judiciary has consistently held that the procedural requirements must be followed with extreme rigor. The Court noted that since the detenu is deprived of the right to a lawyer and a trial, the only protection available is the right to make a representation to the executive and have it decided expeditiously.

The Bench emphasized that administrative lethargy or bureaucratic delays cannot be excused when personal liberty is at stake. Any delay in considering the representation must be explained by the authorities with valid reasons. In the absence of such an explanation, the detention becomes illegal, even if the initial grounds for detention were valid. This ruling serves as a check on executive overreach and ensures that the 'procedure established by law' is not reduced to a mere formality.

Furthermore, the Court highlighted that the obligation of the government is twofold: first, to provide the detenu with the earliest opportunity to make a representation, and second, to consider and decide upon that representation with reasonable expedition. Failure on either count constitutes a violation of the constitutional mandate, necessitating the release of the detenu.