The Karnataka High Court has underscored the constitutional imperative of expeditiously considering a detenu's representation under Article 22(5) of the Constitution. In a significant ruling, the Court set aside a preventive detention order under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, holding that an unexplained delay of over four months in disposing of the representation rendered the continued detention illegal and impermissible.
Background & Facts
The Dispute
The petitioner, Smt. Nilofar, wife of Mehboob Daula, filed a habeas corpus petition under Articles 226 and 227 of the Constitution, challenging the detention order dated 12.02.2026 (Annexure-A) passed by Respondent No. 2 under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the Act). The detention order was passed against the petitioner’s husband, Daula @ S. Daula @ Mahaboob Daula, who was detained pursuant to the said order. The grounds of detention were contained in Annexure-B.
Key Facts
- The detention order was passed on 12.02.2026 under the Act.
- The Advisory Committee, constituted under Section 9 of the Act, submitted its report on 27.04.2026.
- The petitioner sought various documents related to the detention order, which were furnished only after payment of ₹1,884/- on 13.03.2026.
- The petitioner made a representation on 24.02.2026 based on the available material, as the documents sought via RTI were received only in March 2026.
- The representation was considered and rejected by the authority only on 27.06.2026, more than two months after the Advisory Committee’s report.
Procedural History
- 12.02.2026: Detention order passed against the petitioner’s husband under the Act.
- 24.02.2026: Petitioner made a representation to the competent authority.
- 27.04.2026: Advisory Committee submitted its report.
- 13.03.2026: Petitioner received documents sought via RTI after payment of ₹1,884/-.
- 27.06.2026: Authority rejected the petitioner’s representation.
- 2026: Present habeas corpus petition filed before the Karnataka High Court.
Relief Sought
The petitioner sought:
- Quashing of the detention order dated 12.02.2026 (Annexure-A) and the rejection order dated 27.06.2026.
- Immediate release of her husband from detention.
The Legal Issue
The central question before the Court was whether the unexplained delay in considering the detenu’s representation under Article 22(5) of the Constitution vitiates the detention order and renders the continued detention illegal.
Arguments Presented
For the Petitioner
- The petitioner contended that the non-consideration of the representation expeditiously vitiated the detention proceedings.
- Reliance was placed on the Supreme Court’s judgment in Jayanarayan Sukul v. State of West Bengal, AIR 1970 SC 675, which held that delay in considering a representation is fatal to the detention order.
- The petitioner argued that the delay in furnishing documents prevented her from making an effective representation.
- The representation made on 24.02.2026 was considered only on 27.06.2026, which was after the Advisory Committee’s report dated 27.04.2026, indicating a lack of independent consideration by the authority.
For the Respondent
- The learned Additional Government Advocate submitted that the delay in considering the representation was due to the file having been sent back to the Station House Officer, who forwarded it to the Superintendent of Police belatedly.
- It was argued that the delay was procedural and did not vitiate the detention order.
The Court's Analysis
The Court framed the issue as whether the unexplained delay in considering the petitioner’s representation rendered the continued detention impermissible and illegal. The Court relied heavily on the constitutional bench judgments of the Supreme Court to emphasize the fundamental right of a detenu to have their representation considered expeditiously under Article 22(5) of the Constitution.
"The right to make a representation is a constitutional right under Article 22(5) of the Constitution of India and forms part of the fundamental rights guaranteed thereunder."
The Court quoted extensively from Jayanarayan Sukul v. State of West Bengal, which laid down the following principles:
- The appropriate authority is bound to consider the detenu’s representation as early as possible.
- The consideration of the representation is independent of the Advisory Board’s report.
- There should be no delay in considering the representation, as the Government must be vigilant in protecting the citizen’s right to liberty.
- The appropriate Government must exercise its independent judgment on the representation before sending the case to the Advisory Board.
The Court also referred to the Constitution Bench judgment in K.M. Abdulla Kunchi v. Union of India, (1991) 1 SCC 476, which reiterated that:
"The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the government to consider the representation as early as possible. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and would render the continued detention impermissible and illegal."
The Court observed that in the present case:
- The representation dated 24.02.2026 was considered and rejected only on 27.06.2026, more than four months after it was made.
- The rejection order did not provide any reasons for the delay or explain the factual basis for the belated consideration.
- The representation was considered after the Advisory Committee’s report dated 27.04.2026, raising doubts about whether the authority exercised its independent judgment.
The Court rejected the respondent’s explanation that the delay was due to the file’s movement between authorities, holding that such procedural delays cannot justify the violation of a fundamental right. The Court concluded that the unexplained delay in considering the representation vitiated the detention order and violated the petitioner’s fundamental right under Article 22(5).
The Verdict
The Court allowed the habeas corpus petition and set aside the detention order dated 12.02.2026. The detenu, Daula @ S. Daula @ Mahaboob Daula, was ordered to be released forthwith and discharged from detention. The Court kept all other contentions open and reserved the liberty of the State to take appropriate action, if permissible in law.
What This Means For Similar Cases
Expeditious Consideration of Representation Is Non-Negotiable
- Article 22(5) mandates that the authority must consider a detenu’s representation as soon as possible. Any unexplained delay in this process will vitiate the detention order.
- Practitioners must emphasize that the right to representation is a fundamental right, and delays cannot be justified on procedural grounds, such as file movements or administrative lapses.
Independent Judgment Must Precede Advisory Board’s Report
- The authority must independently consider the detenu’s representation before relying on the Advisory Board’s report. If the representation is considered after the Advisory Board’s report, it raises doubts about whether the authority exercised its independent judgment.
- Courts will scrutinize whether the authority’s decision was influenced by the Advisory Board’s report, rather than being an independent exercise of mind.
Unexplained Delay Renders Detention Illegal
- The judgment reinforces that unexplained delays in considering a representation are fatal to the detention order. Even if the Advisory Board recommends continued detention, the authority must expeditiously dispose of the representation.
- Practitioners should argue that any delay beyond a reasonable period (without valid justification) violates Article 22(5) and renders the detention impermissible.
Remedies for Violations
- Detenus or their representatives can file habeas corpus petitions challenging detention orders on the ground of delayed consideration of representations.
- Courts are likely to quash detention orders where the authority fails to provide valid reasons for the delay or where the delay is unexplained.
