Writ Petition At Pre-Detention Stage : Madras HC Doubts Correctness Of SC Decision In 'Subash Popatlal Dave' Case

9th Feb,2021


Writ Petition At Pre-Detention Stage : Madras HC Doubts Correctness Of SC Decision In 'Subash Popatlal Dave' Case

In the Subash Popatlal Dave case (2012), which overruled another three-Judge Bench judgment in the Sayed Taher Bawamiya case, a Single Judge Bench consisting of Justice GR Swaminathan of the Madras High Court (Madurai Bench) expressed its reservation about the correctness of a three-Judge Bench decision of the Supreme Court (2000). Both decisions relate to the extent of the High Court's power to exercise, as permitted in the case of Alka Subhash Gadia, its written competence under Article 21 of the Constitution at the pre-detention level.
In Addl. Secy. Towards Govt. India v. Alka Subhash Gadia, 1992 SCC Supp 496, the Supreme Court has made it clear that even at a pre-detention level, written jurisdiction can be exercised if the High Court finds that there is a possible danger of violation of the fundamental right of an individual under Article 21 of the Constitution. The judgment also identified following contingencies for interfere at a pre-execution stage: That the order challenged is not passed under the Act under which it is alleged to have been passed; that it is sought to be executed against a wrong person that it is passed on ambiguous, extraneous and irrelevant grounds for a wrong purpose; that the authority that passed it has no power to do so. A controversy thereafter arose as to whether the order of preventive detention at a pre-execution stage can be challenged beyond the five grounds as aforementioned. Justice Swaminathan traced this controversy and found that while in Subhash Popatlal Dave (supra) an order for the re-constitution of the Bench was given, the same never happened and the same Bench comprising Justices Altamas Kabir, Gyan Sudha Misra, and J. Chelameswar went on to overrule the case of Sayed Taher Bawamiya. The Judge noted, "There are two decisions before me, namely Sayed Taher Bawamiya v. Joint Secretary reported in (2000) 8 SCC 630) and Subhash Popatlal Dave V. Union of India reported in (2014) 1 SCC 280. The simpler and more convenient course, of course, would be to say that it is appropriate to obey the later decision. I was spared the dilemma, however. Only if a detention order has been passed, the question of considering whether the pre-execution challenge will lie or not will arise. The petition was accordingly