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Question Bank
Question
Explain the applicability of the doctrine of 'constructive res judicata' to successive petitions for a writ of habeas corpus, particularly under Article 32 of the Constitution of India.
Solution
The doctrine of constructive res judicata, a principle derived from Section 11 of the Civil Procedure Code, 1908, generally prevents the re-litigation of issues that could and should have been raised in a prior proceeding. However, in the context of a writ of habeas corpus filed under Article 32 of the Constitution to challenge illegal detention, this technical doctrine is held to be inapplicable. The fundamental right to personal liberty is of such paramount importance that it allows a detained person to file a subsequent petition on fresh grounds that were not raised in an earlier petition. This ensures that a procedural technicality does not stifle the protection of an individual's core liberty against unlawful state action.
Question
What are the constitutional obligations of the detaining authority under Article 22(5) of the Indian Constitution regarding the communication of grounds of detention?
Solution
Article 22(5) of the Indian Constitution imposes two critical obligations on the detaining authority. First, it must communicate the grounds of detention to the detenu "as soon as may be". Second, it must afford the detenu the earliest opportunity to make a representation against the detention order. The term "communicate" is a strong word, implying that the detenu must be imparted sufficient knowledge of the basic facts. This communication must be effective and complete, meaning the grounds must be provided in a language the detenu understands, and must include all documents, statements, and materials relied upon by the authority to form its subjective satisfaction. Failure to do so violates this constitutional imperative and renders the detention illegal.
Question
What is the legal imperative regarding the supply of documents relied upon by the detaining authority, and what is the consequence of non-supply?
Solution
A fundamental legal imperative, stemming from Article 22(5), is that the detaining authority must supply to the detenu all documents and materials it relied upon in passing the detention order. This is not a mere formality but a core component of the detenu's right to make an effective representation. If any document, statement, or other material that influenced the mind of the authority is withheld, the grounds furnished are considered incomplete. Such non-supply of vital documents infringes upon the detenu's constitutional rights and vitiates the detention, as it prevents a meaningful challenge to the order.
Question
Describe the nature of the detenu's right to have a representation considered by the government and the standard expected for its disposal?
Solution
A detenu has a constitutional right under Article 22(5) to make a representation against the detention order. When such a representation is made to the appropriate government, invoking its power of revocation (for instance, under Section 11 of COFEPOSA), it must be considered with utmost expedition. This is a constitutional mandate that demands the highest priority and promptness. Any inordinate or unexplained delay in the disposal of the representation by the government is not a mere procedural lapse but a breach of the detenu's fundamental right, rendering the continued detention illegal.
Question
What are the specific time limits prescribed under Section 3(3) of the COFEPOSA Act for furnishing the grounds of detention to a detenu?
Solution
Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) gives statutory force to the constitutional mandate of Article 22(5). It explicitly states that the grounds of detention must be communicated to the detenu "ordinarily not later than five days" from the date of detention. In exceptional circumstances and for reasons to be recorded in writing, this period may be extended, but it cannot in any case exceed fifteen days from the date of detention. These are the outer limits, and failure to furnish the grounds within this stipulated timeframe is a violation of both the statute and the Constitution, making the detention unlawful.
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