The Supreme Court heard Gitanjali Angmo’s plea challenging activist Sonam Wangchuk’s detention under the NSA, questioning procedural safeguards and the legality of the detention order. The Centre defended the layered statutory process, asserting that preventive detention can extend up to one year if all legal requirements are met.
The Supreme Court of India heard a petition filed by Gitanjali Angmo, challenging the detention of Ladakh-based climate activist Sonam Wangchuk under the National Security Act (NSA). The case has once again brought preventive detention laws under close judicial scrutiny.
During the hearing, Additional Solicitor General K M Nataraj explained the legal framework governing detention under the NSA. He submitted,
“Under the Act it is well established that if a detenue does not assail an order passed by a competent authority vested with statutory powers, and where such order has a bearing on the subject matter, the order cannot later be treated as non est or ignored.”
The Bench asked about the duration of detention. Responding to the query, Nataraj stated,
“The scheme of detention under the Act is clear and layered. Ultimately, once the process is completed and confirmed by all statutory authorities, the period of detention may extend up to one year.”
He further explained the authority empowered to pass detention orders, stating,
“Under Section 3, the power to pass a detention order vests in two authorities. One is the State Government itself, and the other is a delegated authority, such as the District Magistrate or the Commissioner of Police.”
Elaborating on the statutory safeguards, the ASG said,
“Once an officer passes a detention order, that order initially operates for a limited period. It must be reported forthwith to the State Government along with the grounds of detention and other relevant particular.”
He added that the law strictly limits the lifespan of such orders unless formally approved, saying,
“crucially, such an order cannot remain in force beyond 12 days unless it is approved by the State Government. This approval is not automatic; it is an independent statutory act.”
He further explained that after approval, the matter moves to the Advisory Board for examination.
When the Court asked whether the detention order had been challenged, the petitioner’s counsel responded,
“Yes, it is correct that detention order was challenged. But even after detention order dated 26 May, that order, once passed by the detaining authority, had a limited statutory life it could remain in force only for 12 to 15.”
The Court then asked what happened before the Advisory Board. Nataraj replied that the Advisory Board had given its recommendation. When asked whether the detainee had made a representation before the Advisory Board, Nataraj confirmed that such a representation had been made.
Explaining the role of the State Government after the Advisory Board’s report, the ASG stated,
“Sec 12 confers further and independent power upon the State Government—after the Advisory Board has submitted it report.”
He added,
“The power of the Government under Sec 12 has consistently been held to be independent, including under analogous provisions of the COFEPOSA Act.”
The Court again questioned the process prior to the Advisory Board’s report, observing that the recommendation had already been made. Nataraj responded by stating that only the operative part was relevant at that stage.
Summarising the entire statutory process, the ASG explained,
“complete check that the Act, number one, the original order will be passed by the authority, then to be approved by the government under Section 3-4, then it goes to the Advisory Board, then it comes again to the government. Government also has an independent power.”
Justice Kumar then posed a crucial legal question, asking whether a detention order suffering from legal defects could still be set aside even if subsequent orders were not challenged. He observed,
“Assuming for a moment that the 3-4 order is not challenged and the 12 order is not challenged, but the very detention order, if it is smacked of any legal deficiency, can it not be set aside? Well, you can’t say that it is void.”
Responding, Nataraj relied on precedent and said,
“That’s what the judgment is. Judgment 2007-ISCC-2000.”
He further stated,
“this is well-settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void, or not in concurrence with law.”
Justice Kumar then gave a hypothetical example involving show-cause notices and appeals. Nataraj responded that such challenges are permitted only on limited parameters.
The ASG then explained the objective of the NSA, stating,
“The Act is designed to deal with situations where the State is required to act in anticipation, to prevent a person from acting in any manner prejudicial to:”
•the security of India,
•the relations of India with foreign powers,
•the security of the State,
•the maintenance of public order, or
•the maintenance of public supplies and services essential to the community.
He clarified,
“The detention is thus a preventive measure, not a retributive one.”
He further submitted that this principle was settled in Manikkam’s case, stating that no additional provision was required.
Justice Kumar then discussed the distinction between preventive and punitive detention with reference to Section 428 of the CrPC and detention under other statutes. Nataraj responded by highlighting the executive’s discretion, stating,
“That is the preventive and punitive detention, and also the aspect of protecting such circumstances of how it has to be exercised.”
He added,
“The action of the executive in determining a person being only a precautionary, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of the conduct if failure to come to which alone should lead to detention.”
The Court then discussed the severability of grounds in detention orders. Justice Kumar observed that if grounds are interconnected, they cannot be selectively severed. Responding, Nataraj said,
“Unless the particular ground is completely dependent upon the another ground, then that cannot be called as an independent ground, that is the continuation of the original ground.”
Referring to Section 5A of the NSA, Nataraj stated,
“Section 5A embodies the principle of severability. It provides that where a detention order under Section 3 is made on two or more grounds, the order shall be deemed to have been made separately on each ground.”
He added,
“This position has been reaffirmed repeatedly, including in Gautam Jain v. Union of India, (2017) 3 SCC 133, relied upon at page 60 of my compilation.”
He concluded,
“So the legal position is this: If one ground survives, and it is independent, proximate, and relevant, the detention order can still be sustained—unless that ground is wholly dependent on another invalid ground.”
He further stated,
“That is the law. That is the scheme. That is the balance the National Security Act strikes between liberty and security.”
Justice Kumar then questioned the sufficiency of documents produced before the Court. When informed that only one page had been submitted, the Court observed that the entire original file was required.
Addressing allegations that the detention order was a “cut and paste” document, Nataraj questioned the basis of such claims. The Court responded that the continuation of proceedings had been communicated directly to the detainee and not to his lawyers, and that the detention order was alleged to be a replica of the recommendation.
Nataraj further argued that each activity could form an independent ground and explained the obligation to supply documents, stating that the law requires supply only of relied-upon documents and not mere references.
In response to a final query from the Bench regarding communications relied upon to justify detention, Nataraj conceded that such documents form part of the order but maintained that each incident, if supported by separate material, could independently sustain detention under law.
Read Live Coverage:
Click Here to Read More Reports On Sonam Wangchuk
