Rejecting the stand that a person who has travelled abroad on multiple occasions can understood sufficient English, the Delhi High Court has set aside a detention order which was not communicated in a language understandable to the detenu and passed directions for his release from Tihar Jail.
The Delhi High Court elucidated the legal position as regards to the detaining authority’s obligation to communicate to a detenu the grounds of detention. The Court said a detenu has a fundamental right under Article 22(5) that the grounds on which the detention order has been made against him, be communicated to him as soon as may be; and that he be afforded an opportunity of making a representation against the detention order at the earliest.
The bench of Justices Siddharth Mridul and Anup Jairam Bhambhani quashed a detention order because it was not “communicated” i.e. translated, explained and given in writing in the language the detenu was fluent in (Hindi or Punjabi), even after requests made by him and was in violation to Article 22(5) of the Constitution which provides for a fair opportunity to representation against the orders issued by an authority for detention.
“In our opinion, to also best serve the legal interests of the detaining authority, it should be the preferred course of action in all cases, that on the mere asking of a detenu, a complete set of detention order along with the grounds of detention as also all relied-upon documents, should be furnished to a detenu in the language in which the detenu request,” opined the bench.
Article 22(5) of the Constitution of India
The Delhi High Court has passed its judgment relying upon the decisions rendered by the Apex Court in various cases wherein it dealt in depth with regard to the interpretation of Article 22(5) of the Constitution of India.
Article 22 (5) of the Constitution reads as under:
“22. Protection against arrest and detention in certain cases.— (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(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.
The High Court said the legal position is best crystallised in the case of Harkishan vs. State of Maharashtra where the Supreme Court took the view that, “since the High Court had not returned a finding that the detenu knew enough English, the High Court had committed an error in holding that only because English was the official language of the State of Maharashtra, supplying the grounds of detention in English language was sufficient compliance of the mandate of Article 22(5). The Hon’ble Supreme Court accordingly held as under; In order that the detenue should be in a position effectively to make his representation against the Order, he should have knowledge of the grounds of detention…. Communication, in this context, must, therefore, mean imparting to the detenue sufficient knowledge of all the grounds on which the Order of Detention is based.”
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Further, the high court referred to the judgment passed in case of Lallubhai Jogibhai Patel vs. Union of India & Others wherein the Apex Court has further explained the meaning of the word ‘communicate’. “Communicate” is a strong word. It means that sufficient knowledge of the basic facts constituting the “grounds” should be imparted effectively and fully to the detenu in writing in a language which he understands.
Based on the various other legal precedents the High Court said, the purpose of Article 22(5) is not served if the grounds of detention are only verbally explained and nothing in writing is left with the detenu in a language which he understands. “For completeness, where a detenu is illiterate, it has been held by the Hon’ble Supreme Court that the mandate of Article 22(5) would be served if the grounds of detention are explained to the detenu in a language that he understands, so as to enable him to avail the fundamental right of making a representation.”
“Merely because a detenu is able to sign or write a few words in English or any other language, does not mean that the detenu is ‘conversant with the language’, since the detenu may yet not be able to effectively understand the contents of the grounds of detention and the relied-upon documents, to be able to make an effective representation against the detention order.”
“Whether a detenu is conversant with a given language; or is merely feigning ignorance; or has sufficient working knowledge to understand the grounds of detention and the contents of documents relied-upon, would depend upon the facts and circumstances of each case, which a court may reasonably ascertain.”
“It would always be the safer course to furnish translations of the grounds of detention and the documents relied-upon in the language that a detenu understands,” noted the High Court in its order referring to various judicial pronouncements.
The High Court noted in its order that,
“Merely because Harmeet Singh signed several documents in English and was able to string a few words into sentences, evidently on the urging of the concerned officers, is no basis to impute to him sufficient working knowledge of the English language. We may add, that the record shows that Harmeet Singh is a Class X drop-out and that he last attended a Hindi Medium school, which is not controverted by the Ministry.”
Further it noted, “communication dated 24.06.2021, Harmeet Singh specifically requested that a translation of the grounds of detention be made available to him. He wrote : “…. मै आप लोगो से विनती करता ह।ूँ वक मझु े ये सारे कागज जेल मे विलिाएां जाए वहन्िी या पजां ाबी मे विए जाए। …
”, since he said, he was unable to understand English copies of the same. In view of such express request, we are unable to understand as to why the detaining authority did not furnish to Harmeet Singh the requested documents in a language that he understood; and stood obstinately on ceremony on the assertion that Harmeet Singh understood sufficient English to be able to defend himself against his preventive detention.”
All documents should be furnished to detenu in language detenu requests: Delhi HC
The High Court has observed, “In fact, in our opinion, to also best serve the legal interests of the detaining authority, it should be the preferred course of action in all cases, that on the mere asking of a detenu, a complete set of detention order along with the grounds of detention as also all relied-upon documents, should be furnished to a detenu in the language in which the detenu requests. It would be preferable that the detaining authority should take such request in writing from a detenu and must formally serve upon the detenu the translated papers as requested expeditiously, against acknowledgement, to obviate challenges such as the present one, which we find are frequently made. In our view, the above course of action would place the communication of the detention order on firmer footing; and would avoid unnecessary legal challenges to it.
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The High Court held that detention order bearing No. PD-12002/05/2020-COFEPOSA dated 05.06.2020 was not served upon the petitioner’s son, detenu Harmeet Singh, in a language that he understands. Accordingly, the impugned detention order falls foul of the constitutional mandate contained in Article 22(5) of the Constitution as interpreted by the Hon’ble Supreme Court in the various decisions referred to above.
The High Court’s direction came in a Habeas Corpus plea filed by Jasvinder Kaur whose son Harmeet Singh was detained by authorities on his alleged involvement in a smuggling case. He was arrested on 03.02.2019, from the IGI Airport along with other three for carrying contraband items and goods such as drones, cigarettes, whisky, cameras under Sections 110 & 111 of the Customs Act worth Rs 1,09,74,500. He was sent to judicial custody, which was extended time to time until 06.04.2019, on which date, he was released on statutory bail as the investigating officer had failed to file the chargesheet/complaint within the prescribed period under section 167(2) CrPC. Before that, on 25.02.2019, the office of the Commissioner of Customs placed before the Joint Secretary (COFEPOSA) the proposal for detention inter-alia of Harmeet Singh, enclosing a brief of the evidence gathered by them, consequent to which Harmeet Singh was eventually detained on 24.05.2021 under detention order dated 05.06.2020. Multiple attempts at quashing the order were made by the detenu at pre-execution stage of the order but action under section 7(1)(b) of the COFEPOSA Act is stated to have been initiated against him on 07.08.2020 leading to his final detention on 24.05.2021. The impugned detention order along with the grounds of detention in English language were served upon Harmeet Singh on 24/25.05.2021.
After the detention of Harmeet Singh in Tihar Jail, he made a written request for a copy of the detention orders in either Hindi or Punjabi as he was unable to understand the English copies of the order. His request was forwarded by the Superintendent of Tihar Jail to one desk to another when finally his request was rejected on the grounds of having sufficient grounds for his detention.
Case Name- Jasvinder Kaur Vs Union of India through its Secretary Ministry of Finance Department of Revenue & Ors.
JASVINDER-KAUR