Friday, November 14, 2008
SC Verdict: Arts.21,22,32 and 226
The reputation of a person is a facet of his ‘right to life’ under Article 21 of the Constitution and to protect this right, illegal preventive detention orders can be quashed even at pre-execution stage through habeas corpus petitions, the Supreme Court has held.
“If a person against whom a prevention detention order has been passed can show to the court that the order is clearly illegal, why should he be compelled to go to jail? To tell such a person that although such a detention order is illegal he must yet go to jail and he will be released later is a meaningless and futile exercise,” said a Bench consisting of Justices Altamas Kabir and Markandey Katju on Wednesday.
Writing the judgment, Justice Katju said: Article 21, which gives the right of life and liberty, is the most fundamental of all Fundamental Rights in the Constitution. Though, no doubt, restrictions can be placed on these rights in the interest of public order, security of the state, etc, they are not to be lightly transgressed.”
The Bench said: “If a person is sent to jail then even if he is subsequently released, his reputation may be irreparably tarnished. The liberty of a person is a precious fundamental right under Article 21 and should not be transgressed.”
Quoting a sloka from the Gita which says, “For a self-respecting man, death is preferable to dishonour,” the Bench said: “If a person against whom a preventive detention order has been passed comes to court at the pre-execution stage and satisfies that the order is clearly illegal, there is no reason why the court should stay its hand and compel the petitioner to go to jail even though he is bound to be released subsequently [since the detention order was illegal].”
Writ of habeas corpus
On the contention that a writ of habeas corpus would lie only when there was illegal detention, the Bench said: “We regret we cannot agree. Firstly, Article 226 and Article 32 permit the High Court and the Supreme Court to not only issue the writs which were traditionally issued by British courts but these Articles give much wider powers to this court and the High Court. Hence, even if the petitioner is not in detention, a writ of certiorari and/or mandamus can be issued.”
The Bench said: “The celebrated writ of habeas corpus has been described as ‘a great constitutional privilege of the citizen’ or ‘the first security of civil liberty.’ The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers have lived through bitter years of the freedom struggle and seen an alien government trample upon the human rights of our citizens.”
Detention set aside
In the instant case, the