Introduction Facts Questions of law Decisions

Introduction

In the recent judgment passed in Gautam Jain v Union of India,(1) the Supreme Court clarified and reaffirmed the legal position surrounding the existence and severability of multiple grounds contained in a detention order passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974.

Section 3(3) of the act deals with the communication of detention orders and mandates that the grounds on which a detention order has been passed be communicated to the detainee as soon as the order is passed, so that he or she can make a representation against the same.

The Supreme Court addressed the scope of the definition of 'grounds' in a detention order, holding that grounds are the basic facts on which an order is based in light of subsidiary facts or further particulars.

The Supreme Court was of the view that different instances cited in a detention order should be treated as different grounds, as they constitute basic facts. In other words, these instances are factual constituents of the grounds for the order and the particulars given in respect of those instances are considered subsidiary details.

In its judgment, the Supreme Court agreed with the Delhi High Court's conclusion that when multiple grounds form the basis of a detention order, even if one of the grounds is to be disregarded for technical reasons, applying the principle of segregation of grounds enumerated in Section 5A of the act, the detention order would be still valid.

Facts

A detention order was passed by the enforcement directorate against the appellant under Section 3(1) of the act, which empowers the central or state governments to make orders detaining certain persons.

Following his detention in Tihar Central Jail, the appellant was served a detention order setting out the grounds of detention under Section 3(3) of the act and supplied with copies of the documents on which the order relied.

The appellant contended that the copies of the documents served on him were incomplete and thus sought revocation of the detention order. He further argued that the failure to supply the documents in question had deprived of him of his right to make an effective and purposeful representation before the Advisory Board and the central government.

In this respect, the appellant submitted a writ petition in the Delhi High Court seeking to set aside the detention order. When his petition was dismissed, he appealed before the Supreme Court.

In his appeal, the appellant also challenged the constitutional validity of Section 5A of the act.

Question of law

The question of law involved in this appeal related to the scope of the grounds contained in the detention order and the applicability of the principle of severability under Section 5A (grounds of detention severable) of the act.

Decisions

Delhi High Court's decision The Delhi High Court accepted that the respondents' had failed to furnish certain documents relating to a particular allegation in the detention order. It took the view that these documents could not be regarded as immaterial.

Despite this, the Delhi High Court rejected the appellant's challenge to the detention order, holding that it contained the grounds for the order, even if the documents pertaining to one particular ground were not furnished. In light of this, the court held that the ground in question could be ignored by applying the principle of segregation and would not affect the remaining grounds. Accordingly, the detention order was sustainable.

Supreme Court's decision The appellant, aggrieved by the High Court's ruling, appealed before the Supreme Court. In dismissing the appeal, the Supreme Court relied on its prior decisions in Vakil Singh v State of Jammu & Kashmir,(2) Hansmukh v State of Gujarat(3) and State of Gujarat v Chamanlal Manjibhai Soni(4) and observed that 'grounds' can be defined as the basic facts on which conclusions are founded and that they differ from the subsidiary facts or further particulars.

According to the Supreme Court, different instances cited in the detention order should be treated as different grounds as they constitute basic facts on which the order was premised and any further particulars given in respect of those instances are merely subsidiary details. The Supreme Court thus held that 'grounds' must be defined as the factors on which the detention order is primarily based.

Applying the definition of 'grounds' to the facts of the present case, the Supreme Court agreed with the Delhi High Court that the detention order was based on multiple grounds, insofar as:

  • the various acts, which formed separate grounds, were set out in the order; and
  • the detaining authority was of the opinion that the appellant should be detained.

While disposing of the appeal, the Supreme Court further observed that the constitutional validity of Section 5A of the act, which was challenged and upheld by the Supreme Court in Attorney General of India v Amritlal Prajivandas,(5) was not a contention available to the appellant in the case at hand.

For further information on this topic please contact Jasleen K Oberoi or Gauhar Mirza at Shardul Amarchand Mangaldas & Co by telephone (+91 11 4159 0700) or email (jasleen.oberoi@amsshardul.com or gauhar.mirza@AMSShardul.com). The Shardul Amarchand Mangaldas & Co website can be accessed at www.amsshardul.com.

Endnotes

(1) (2017) SCC Online SC 16.

(2) (1975) 3 SCC 545.

(3) (1981) 2 SCC 175.

(4) (1981) 2 SCC 24.

(5) (1994) 5 SCC 54.

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