Failure to Inform Detenu of Right to Represent to Detaining Authority Vitiates NSA Detention: Gauhati High Court

“The failure to inform the detenu of such right to make representation to the detaining authority vitiates the detention order made even under the provisions of the National Security Act, 1980.”— In a seminal ruling the Gauhati High Court, comprising Justice Kalyan Rai Surana and Justice Rajesh Mazumdar, quashed the preventive detention of Aminul Islam, a Member of Legislative Assembly (MLA), citing fatal procedural lapses by the State machinery.

The Petitioner, Aminul Islam, was arrested on April 24, 2025, for allegedly making inflammatory statements regarding the Pulwama and Pahalgam attacks, accusing the Central Government of conspiracy. While he was granted bail with stringent conditions by the Sessions Court on May 14, 2025, the District Magistrate, Nagaon, immediately issued a detention order under Section 3(2) of the National Security Act (NSA), 1980 on the same day.

Arguments and Procedural Lapses

The Petitioner’s counsel, Mr. S. Borthakur, argued that the detention was illegal on multiple grounds:

1. Right to Representation: The Detaining Authority failed to inform the detenu of his right to make a representation specifically to the Detaining Authority (District Magistrate), informing him only of the right to represent to the State Government and Advisory Board.

2. Delay: There was an unexplained delay of 12 days by the DM in forwarding the representation and a 23-day delay in informing the petitioner of his right to represent to the Central Government.

3. Non-consideration of Bail: The Detaining Authority failed to consider that a competent court had already granted bail with conditions sufficient to prevent the alleged prejudice to public order.

The Constitutional Mandate

The Division Bench relied heavily on the Full Bench decision in Konsam Brojen Singh Vs. State of Manipur (2006). The Court reiterated that Article 22(5) of the Constitution confers two distinct rights:

1. To be informed of the grounds of detention.

2. To be afforded the earliest opportunity of making a representation.

Crucially, the Court held that the detenu has a right to represent to the Detaining Authority itself, in addition to the Government. Failure to communicate this specific right is fatal.

On Delay and Administrative Apathy

The Court expressed strong disapproval of the administrative delays. The petitioner was informed of his right to represent to the Central Government only after the Centre queried the State about it—a delay of 23 days. The Court cited K.M. Abdulla Kunhi (1991), stating that "supine indifference, slackness or callous attitude" in handling representations renders continued detention illegal.

The Court held that the failure to inform the petitioner of his right to represent to the Detaining Authority alone was sufficient to vitiate the order. The detention orders dated 14.05.2025 and 25.06.2025 were set aside, and the petitioner was ordered to be set at liberty forthwith.

Date of Decision: 27 November, 2025