Right to information Act, 2005 — Sections 3 & 8 — Applicability of Act in case of preventive detention

February 11th, 2013

Right to information Act, 2005 — Sections 3 & 8 — Applicability of Act in case of preventive detention — Determination — Held, the provisions of the Constitution will prevail over any enactment of the legislature, which itself is a creature of the Constitution — Since clause (5) of Article 22 provides that the grounds for detention are to be served on a detenu after his detention, the provisions of Section 3 of the R.T.I. Act, 2005, cannot be applied to cases relating to preventive detention at the pre-execution stage — In other words, Section 3 of the R.T.I. Act has to give way to the provisions of Clause (5) of Article 22 of the Constitution — Even the provisions relating to production of an arrested or detained person, contained in clauses (1) and (2) of Article 22 of the Constitution, have in their application been excluded in respect of a person detained under any preventive detention law — Resultantly, notwithstanding the provisions of the R.T.I. Act, 2005, the State is not under any obligation to provide the grounds of detention to a detenu prior to his arrest and detention — Constitution of India — Article 22.

(Paras 21 to 24)

HELD: We, therefore, agree with the learned ASG, Mr. P.P. Malhotra, that notwithstanding the provisions of the R.T.I. Act, 2005, the State is not under any obligation to provide the grounds of detention to a detenu prior to his arrest and detention, notwithstanding the fact that in the cases of Choith Nanikram Harchandai (Writ Petition (Crl) No.88 of 2010) and Suresh Hotwani & Anr. (Writ Petition (Crl) No.35 of 2011), the grounds of detention had been provided to the detenu under the R.T.I. Act, 2005, at the pre-execution stage. The procedure followed under the R.T.I. Act, in respect of the said writ petitions cannot and should not be treated as a precedent in regard to Mr. Rohatgi’s contention that under the R.T.I. Act, 2005, a detenu was entitled, in assertion of his human rights, to receive the grounds under which he was to be detained, even before his detention, at the pre-execution stage.

(Para 24)

Subhash Popatlal Dave v. Union of India[Bench Strength 3], W.P. (Crl.) No. 137/2011 with W.P. (Crl.) Nos. 35, 138, 142, 220 & 249/2011 and W.P. (Crl.) Nos. 11 & 14/2012, SLP (Crl.) Nos. 1909 & 1938/2011 and SLP (Crl.) Nos. 2442 & 2091-2092/2012(10/07/2012), 2012 AIR(SC) 3370: 2012(7) SCC 533: 2012(6) JT 314: 2012(6) SCALE 367: 2012(4) Supreme 399: 2012(5) SLT 286: 2012 CrLJ 3848: 2012(281) ELT 641 [Altamas Kabir, J.: Gyan Sudha Misra, J.: J. Chelameswar, J.]

Entry Filed under: Judgements