Failure To Inform Detenue Of His Right To Make A Representation Is Fatal And Would Render Preventive Detention Illegal: Supreme Court
It is definitely of utmost significance to note that in a major development, we see that the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Alfiya.A vs State of Kerala in Criminal Appeal 2026 (@ SLP (Crl.) No.8439 of 2026) and cited in 2026 LiveLaw (SC) 775 that was pronounced just recently on July 28, 2026 has minced absolutely just no words to hold indubitably that a preventive detention order would be rendered illegal if the detaining authority fails to inform the detenu of his right to make a representation before it, even if the detenu independently submitted such a representation. We need to note that in this leading case, the appellant who is the detenu’s wife had challenged the Kerala High Court’s order which had confirmed her husband’s detention. It must be laid bare that before the Apex Court, it was pointed out that there was non-compliance of Article 22(5) of the Constitution which mandates the detaining authority to inform the ground(s) of detention, and a right of the detenu to make a representation before the authority. It is worth paying singular attention that the top court found substance in those allegations and so allowed the appeal of the appellant and the detention order was quashed which paved the way for the detenu’s release but only after he had spent nearly seven months in illegal detention.
At the very outset, this brief, brilliant, bold and balanced judgment authored by a Division Bench of the Apex Court comprising of Hon’ble Mr Justice Vikram Nath and Hon’ble Mr Justice Sandeep Mehta sets the ball in motion by first and foremost putting forth in para 2 that, “The present appeal arises out of the final judgment and order dated 08.04.2026 passed by the High Court of Kerala at Ernakulam (In short “High Court”) in Writ Petition (Criminal) No. 566 of 2026, by which the High Court dismissed the petition for a writ of habeas corpus filed by the appellant and declined to interfere with the detention of her husband, Muhammed Rafi (In short “detenu”).”
As we see, the Division Bench then lays bare in para 3 disclosing that, “The appeal calls in question the order of detention dated 13.01.2026 passed against the detenu by the first respondent under sub-section (1) of Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (In short “PITNDPS Act), as well as the order dated 19.03.2026 by which the said order of detention was confirmed for a period of one year.”
To put things in perspective, the Division Bench envisages in para 4 while elaborating on the facts of the case stating that, “The facts giving rise to the present appeal are as follows:
4.1) On 16.05.2024, Crime No. 640 of 2024 came to be registered at the Anchalummoodu Police Station against, inter alia, the detenu for offences under Sections 22(b) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”). The detenu was arrested in connection with the said case and was thereafter released on bail on 26.07.2024.
4.2) On 31.08.2025, Crime No. 2171 of 2025 came to be registered at the Karunagappally Police Station against the detenu for an offence under Section 22(c) of the NDPS Act. The detenu was arrested in connection with the said case and was remanded to judicial custody.
4.3) On 28.10.2025, the detenu was granted bail in Crime No. 2171 of 2025 by the Court of Session.
4.4) In the meantime, proceedings under Section 126 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the “BNSS”) came to be initiated against the detenu.
4.5) On 10.11.2025, the Station House Officer concerned submitted a proposal for the preventive detention of the detenu under the PITNDPS Act. The said proposal was forwarded by the sponsoring authority on 12.11.2025 and, after being processed by the competent authorities, culminated in the order of detention dated 13.01.2026.
4.6) On 13.01.2026, the first respondent, being an officer specially empowered for the purpose (hereinafter referred to as the “Detaining Authority”), passed the order of detention against the detenu under sub-section (1) of Section 3 of the PITNDPS Act. The report in respect of the said order was forwarded to the Central Government on 16.01.2026.
4.7) The order of detention was executed on 05.02.2026, on which date the detenu was taken into custody, and he was lodged in the Central Prison, Thiruvananthapuram, on 06.02.2026. The grounds of detention were served upon him on 06.02.2026.
4.8) On 13.02.2026, the detenu submitted two representations, one addressed to the Advisory Board constituted under Section 9 of the PITNDPS Act (hereinafter referred to as the “Advisory Board”) and the other addressed to the Detaining Authority.
4.9) On 16.02.2026, the case was referred to the Advisory Board. The Advisory Board heard the detenu on 10.03.2026 and submitted its report on 13.03.2026, opining that there was sufficient cause for the detention of the detenu.
4.10) On 19.03.2026, the State Government confirmed the order of detention and directed that the detenu be detained for a period of one year from the date of his detention. The rejection of the representation submitted by the detenu was communicated to him on 27.03.2026.
4.11) Being aggrieved by the order of detention and the order of confirmation, the appellant filed Writ Petition (Criminal) No. 566 of 2026 before the High Court seeking a writ of habeas corpus. By the judgment and order dated 08.04.2026 impugned before us, the High Court dismissed the said writ petition and declined to interfere with the detention of the detenu.
4.12) The High Court principally examined the effect of the detenu having been enlarged on bail and the pendency of proceedings under Section 126 of the BNSS. It held that neither circumstance precluded the exercise of the power of preventive detention under the PITNDPS Act and, accordingly, declined to interfere with the detention. Hence, the present appeal.”
Needless to say, the Division Bench then states in para 5 that, “The appellant has now approached this Court, assailing the judgment of the High Court and reiterating the challenge to the order of detention and the order of confirmation.”
Plainly speaking, the Division Bench observes in para 7 that, “Before we turn to the questions that arise in this appeal, it is necessary to bear in mind the nature of the jurisdiction that is invoked when an order of preventive detention is called in question. Such an order is not passed upon proof of guilt established at a trial, but upon the subjective satisfaction of the Detaining Authority that the detention of a person is necessary to prevent him from acting in a manner prejudicial to the object which the PITNDPS Act seeks to serve. It is not for this Court, while examining the legality of such an order, to sit in judgment over the sufficiency of the material on which the satisfaction is founded, or to substitute its own opinion for that of the Detaining Authority on the question whether the detenu ought to have been detained. To that extent the area of judicial review is a narrow one.”
Be it noted, the Division Bench notes in para 8 that, “That narrowness, however, does not reduce judicial scrutiny to an empty formality. Preventive detention permits the deprivation of the liberty of a person on the basis of what he may do and not on the basis of what he has been found to have done. A power of that description, which is a serious inroad into the personal liberty guaranteed by Article 21 of the Constitution of India (hereinafter referred to as the “Constitution”), can be sustained only if it is exercised in strict conformity with the conditions which the Constitution and the statute have prescribed for its exercise. Those conditions are not technicalities to be observed in form and disregarded in substance. They constitute the only safeguards available to a person who is detained without the benefit of a trial, and they are, therefore, to be enforced with corresponding strictness.”
To be sure, the Division Bench states in para 10 that, “The Constitution, while permitting preventive detention, does not leave the person detained wholly without protection. Clause (5) of Article 22 of the Constitution provides as follows:
“22. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.””
Truly speaking, the Division Bench points out in para 11 that, “Two distinct obligations flow from this provision, and both are cast upon the authority making the order. The first is to communicate to the detenu, as soon as may be, the grounds on which the order of detention has been made. The second is to afford him the earliest opportunity of making a representation against the order. The right to make a representation would be an empty right if it did not carry with it a corresponding obligation on the part of the authority to consider that representation, and to consider it independently and with reasonable despatch. The communication of the grounds and the opportunity to represent are not ends in themselves. They exist so that the detenu may effectively resist his detention at the earliest point of time, and any failure which renders that opportunity illusory strikes at the root of the detention.”
It cannot be lost sight of that the Division Bench notes in para 17 that, “It has already been noted that Article 22(5) of the Constitution casts upon the authority making the order of detention two distinct obligations, and that the second of them is to afford the detenu the earliest opportunity of making a representation against the order. That opportunity carries with it, as a necessary concomitant, the obligation of the authority to inform the detenu of the persons or bodies to whom he may address his representation. Where the order of detention has been made by an officer specially empowered under Section 3(1) of the PITNDPS Act, the detenu is entitled to make a representation to that officer, who made the order and who is competent to revoke it, and he must be informed of that right. That such a right, distinct from the right to represent to the State Government, to the Advisory Board and to the Central Government, enures to the detenu and must be made known to him, was settled by a Constitution Bench of this Court in Kamleshkumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, in relation to this very Act among others. The failure to inform the detenu of it renders the opportunity to represent incomplete and deprives him of a valuable safeguard.”
Most significantly and so also most forthrightly, the Division Bench encapsulates in para 18 what constitutes the cornerstone of this notable judgment postulating precisely that, “In the present case, the order of detention was made by the Detaining Authority in exercise of the power conferred upon an officer specially empowered under Section 3(1) of the PITNDPS Act. The detenu was informed that he could make representations to the State Government, the Advisory Board and the Central Government. He was not separately informed that he was entitled to make a representation to the officer who had made the order of detention in exercise of the specially conferred statutory power. The omission is evident from the detention order itself. The fact that the detenu nevertheless addressed one of his representations to the Detaining Authority cannot cure the failure to inform him of that constitutional right. The obligation was upon the authority to communicate the right and could not depend upon whether the detenu independently became aware of it.”
Equally significant is that it is worth noting that the Division Bench notes in para 19 that, “The matter does not rest with the failure to inform the detenu of his right. The representation addressed to the Detaining Authority was submitted on 13.02.2026. The case was thereafter referred to the Advisory Board on 16.02.2026. The Advisory Board submitted its report only on 13.03.2026. Neither the order of confirmation nor the counter affidavit filed before this Court discloses any separate consideration or decision upon the representation by the Detaining Authority in exercise of its statutory power. On the contrary, the case of the respondents is that the representation was examined together with the opinion of the Advisory Board and the other connected documents. This sequence indicates that the representation was kept pending until the Advisory Board had rendered its opinion and was thereafter dealt with as part of the governmental exercise of confirmation. The consideration of a representation under Article 22(5) and the examination undertaken by the Advisory Board are distinct constitutional processes. The opinion of the Advisory Board cannot substitute the independent consideration required from an authority competent to revoke the detention. This principle stands recognised by this Court in Gracy v. State of Kerala (1991) 2 SCC 1, and K.M. Abdulla Kunhi v. Union of India 1991) 1 SCC 476. The record in the present case does not disclose the distinct and independent decision which the constitutional guarantee required.”
It also cannot be just glossed over that the Division Bench specifies in para 20 stating that, “There is also an unexplained delay in dealing with the representation. Even if the order of confirmation dated 19.03.2026 is treated as the first decision upon the representation dated 13.02.2026, a period of 34 days had elapsed before such consideration. A further period of eight days elapsed before the rejection was communicated to the detenu on 27.03.2026. No separate order deciding the representation has been placed before us. Nor has any satisfactory or day-to-day explanation been furnished for the time taken either to consider the representation or to communicate the decision. The general statement that the representation was examined together with the opinion of the Advisory Board does not explain the delay. It instead reinforces the conclusion that the representation was not treated as an independent constitutional process requiring immediate attention.”
Most remarkably and most rationally, it is worth noting that the Division Bench notes in para 21 that, “We accordingly hold that the safeguards attaching to the right of the detenu to make a representation against his detention were not observed. The detenu was not informed of his right to represent to the Detaining Authority who had made the order. The record does not disclose any independent decision upon the representation by the Detaining Authority in exercise of his own statutory power. The consideration disclosed by the respondents was undertaken only as part of the subsequent confirmation exercise, and even that consideration was attended by an unexplained delay. These infirmities violate Article 22(5) of the Constitution and are sufficient to render the continued detention of the detenu illegal.”
Most rationally, the Division Bench propounds in para 22 holding that, “The infirmities noted above are not mere technical or procedural irregularities capable of being cured by substantial compliance. They concern the enforcement of the constitutional right guaranteed by Article 22(5) to a person detained without trial. Once a mandatory constitutional safeguard governing preventive detention is found to have been violated, the continued detention cannot be sustained. The High Court did not examine whether the representation submitted by the detenu received the independent and expeditious consideration required by Article 22(5) of the Constitution. Since that issue bears directly upon the legality of the continued detention, the judgment of the High Court cannot be sustained.”
As a corollary, the Division Bench then directs and holds in para 23 that, “Accordingly, the appeal is allowed. The judgment and order dated 08.04.2026 passed by the High Court in Writ Petition (Criminal) No. 566 of 2026 is set aside. The order of detention dated 13.01.2026 passed against the detenu under Section 3(1) of the PITNDPS Act and the order of confirmation dated 19.03.2026 are quashed.”
It would be instructive to note that the Division Bench hastens to add in para 24 noting that, “The detenu, Muhammed Rafi, shall be set at liberty forthwith, unless his detention or custody is required in connection with any other case.”
Finally, the Division Bench then concludes by directing and holding in para 25 that, “Pending application(s), if any, shall stand disposed of. There shall be no order as to costs.”
In conclusion, we thus see that the Apex Court has made it explicitly clear in this leading case that failure to inform detenu of his right to make a representation is fatal and would render the preventive detention illegal. So, by all accounts, it is imperative that the detenu must be apprised of his right to make a representation and if it is not done then the preventive detention would itself be rendered illegal as we see in this leading case. No denying or disputing it!
