S S SUBAIR Vs. UNION OF INDIA

JUDGEMENT

(1.) The short question that falls for consideration in this petition is whether, and if so, the situations in which an order of preventive detention can be assailed before the same is executed and the person concerned taken in preventive detention. The question is no longer res Integra having been answered authoritatively by. the Supreme Court in Additional Secretary to Govt. of India, and Ors. V/s Smt. Alka Subhash Gadia & Anr. ((1992 Supp. (1) SCC 496), Dealing with the question whether the power of judicial review could be. exercised to test the validity of orders of the preventive detention, even, before the same are executed, the court held that if detention orders are challenged and the operation thereof stayed before they, are. executed in every case, the very purpose, of the order and the law under which the same is issued will be frustrated. Having said so, the court dispelled the impression that the power of judicial review did not extend to examining the validity of an order of detention prior to its execution. It observed that the courts have the necessary power and have exercised the same in proper cases although such cases have been few and the grounds on which courts have interfered with them at the pre-. execution stage limited. The exercise of ppwer of judicial review of preventive detention orders before their execution was, declared the court, limited to the following situations :

(2.) The above statement of law was reiterated in a later decision pronounced by their lordships in Sayed Taher Bawamiya Vs. Joint Secretary to the Govt of India and Ore, (2000) 8 SCC 630. Their lordships extracted with approval the five situations in which interference was permissible according to Smt. Ajka Subhash Gadia's case (Supra) with preventive detention order even on at the pre-execution stage and held that interference with preventive detention orders at pre-execution stage was possible only in those five situations and none else. The court also repelled the contention that the order of detention in that case was made on extraneous and irrelevant grounds. It held that there was no material for making such an averment for the simple reason that the order of detention and the grounds on which the same was passed was not on record as the order had not been executed nor did the appellants have a copy of the same.

(3.) The above decisions were followed by the decision of the Apex court in Union of India and Ore Vs. Parasmal Rampuria (1998) 8 SCC 402 in which the court indicated the proper course to be adopted in cases where an order of detention is sought to be challenged on grounds like delayed execution of the detention order, delay in consideration of the representation and the like. The court observed that the challenge to the detention order was hypothetical in cases where the same had not been executed and set out the proper course to be followed in such cases in the following words: