Supreme Court Rules on Preventive Detention: Advisory Board’s Opinion Prevails

The Supreme Court of India, in the case of Union of India vs. Nisar Pallathukadavil Aliyar, examined the scope of the Advisory Board’s power under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The Court ruled that the opinion of the Advisory Board is final in cases where it finds no sufficient cause for continued detention, and such opinions cannot be challenged before the judiciary.

Background of the Case

The case arose from detention orders issued under Section 3(1) of COFEPOSA against multiple individuals, including Nisar Pallathukadavil Aliyar, Happy Arvind Kumar Dhakad, and Asharaf A.U. The Union of India challenged the Advisory Board’s opinion, which held that there was no sufficient cause for their continued detention. The government sought to overturn the Board’s decision and continue the preventive detention of the respondents.

The Advisory Board, in its report dated July 22, 2019, found that there was no sufficient cause for the detention. This prompted the Union of India to file a Special Leave Petition (SLP) before the Supreme Court.

Key Legal Issues

• Whether the opinion of the Advisory Board under Section 8 of COFEPOSA is justiciable and can be challenged before the Supreme Court.
• Whether the government can continue preventive detention despite the Advisory Board’s opinion favoring the detenu.
• The constitutional validity of Section 8 of COFEPOSA in relation to Article 22 of the Indian Constitution.

Arguments by the Union of India (Petitioner)

The government contended:

• The Advisory Board’s opinion should not be considered final and should be open to judicial review.
• The Advisory Board’s findings were erroneous and failed to consider the gravity of the offenses committed by the detenus.
• The Board’s opinion should be treated as a recommendation rather than a binding decision.
• Since the detaining authority had initially found sufficient grounds for detention, the Supreme Court should intervene and restore the detention orders.

Arguments by the Respondents (Detenus)

The respondents countered:

• The Advisory Board’s opinion is binding under Section 8(f) of COFEPOSA, and once it finds no sufficient cause for detention, the government must revoke the detention order.
• The Supreme Court has previously ruled that Advisory Board opinions in preventive detention matters are not subject to judicial scrutiny.
• Preventive detention laws are an exception to fundamental rights and must be strictly construed, with procedural safeguards taking precedence.
• The detaining authority had failed to justify continued detention beyond the statutory period.

Supreme Court’s Observations

1. Finality of the Advisory Board’s Opinion

The Court ruled that the Advisory Board’s opinion is binding and cannot be challenged by the government. It stated:

“The opinion of the Advisory Board, once rendered, cannot be subjected to judicial review unless there is a jurisdictional error. The government must revoke the detention order upon an unfavorable opinion from the Board.”

2. COFEPOSA and Constitutional Protections

The Court emphasized that preventive detention laws must conform to Article 22 of the Constitution, which provides safeguards against arbitrary detention. It observed:

“The Advisory Board serves as an important check on executive power, and its opinion must be respected to prevent the abuse of preventive detention laws.”

3. Judicial Precedents on Advisory Board Opinions

The Court relied on past rulings, including A.K. Roy vs. Union of India and Akshoy Konai vs. State of West Bengal, to reaffirm that Advisory Board opinions are non-justiciable:

“The role of the Advisory Board is not that of a judicial body but a safeguard against arbitrary detention. Its findings, therefore, must be accepted as final.”

4. Government’s Limited Role After Advisory Board Findings

The Court ruled that once the Advisory Board finds no sufficient cause for detention, the government is duty-bound to release the detenu. It held:

“Section 8(f) of COFEPOSA is explicit: where the Advisory Board finds no cause for detention, the government ‘shall’ revoke the order. There is no discretion left to the government.”

Final Verdict

The Supreme Court ruled:

• The Advisory Board’s opinion dated July 22, 2019, in favor of the detenus, is final and binding.
• The Special Leave Petitions (SLPs) filed by the Union of India were dismissed.
• The detention orders issued under COFEPOSA must be revoked immediately.
• The detenus must be released forthwith.

Conclusion

This judgment strengthens the procedural safeguards in preventive detention laws and limits the government’s ability to prolong detention beyond the Advisory Board’s findings. The ruling ensures that Advisory Board opinions serve as an effective check against arbitrary executive action, reinforcing the principles of constitutional rights and personal liberty.

Petitioner Name: Union of India.
Respondent Name: Nisar Pallathukadavil Aliyar.
Judgment By: Justice Uday Umesh Lalit, Justice R. Subhash Reddy.
Place Of Incident: India.
Judgment Date: 21-08-2019.

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