Govt’s failure to entertain KAAPA inmate’s plea against detention is unconstitutional: Kerala Law Officer

A division bench of the Kerala High Court has held that the government’s failure to promptly consider a representation submitted by a person detained under the Kerala Prevention of Anti-Social Activities Act, 2007 (KAAPA) against detention would clearly violate the detainee’s constitutional right under Article 22(5) of the Constitution of India.

The bench comprising Raja Vijayaraghavan V. and Justice G. Gireesh gave the verdict while quashing the detention of Krishnadas of Palakkad under KAAPA on a petition filed by his wife. The proceedings under KAAPA were initiated by the district collector in his capacity as district magistrate on the basis of a report by the district police chief in view of his involvement in six criminal cases.

The Court observed that the Supreme Court had held that the petition filed by the detainee concerned the liberty of the individual, a highly valued right enshrined in Article 21 of the Constitution. Clause (5) of Article 22 of the Constitution imposes a statutory duty on the government to entertain the petition at the earliest possible moment. Any unexplained delay in disposing of the petition would be a violation of the constitutional imperative and would render the continued detention impermissible and illegal. Indeed, the confirmation of detention by the Advisory Board does not preclude the government from revoking the detention order after considering the petition. The petitioners had a constitutional right and the state government had a corresponding constitutional obligation to entertain the petitions, whether they were made before or after their case was referred to the Advisory Board. The government had no mandate to await the decision of the Advisory Board which reviews the detention order, the Court added.