The Supreme Court today heard a plea challenging the preventive detention of Sonam Wangchuk under the National Security Act, 1980, with Senior Advocate Kapil Sibal arguing that the detention was vitiated due to delayed supply of relied-upon material and incomplete communication of grounds of detention, resulting in violation of Article 22(5) of the Constitution.
The matter was heard by Justice Aravind Kumar and Justice Prasanna B. Varale.
Senior Advocate Kapil Sibal, appearing for the petitioner, assailed the preventive detention of Sonam Wangchuk under the National Security Act, 1980, contending that the detention stood vitiated due to grave procedural lapses, particularly the delayed and selective supply of material relied upon in the grounds of detention.
Referring to Article 22(5) of the Constitution, Mr. Sibal submitted that the provision incorporates a dual and inseparable safeguard. He argued:
“Article 22(5) incorporates a dual requirement. First, of requiring the detaining authority to communicate the grounds of detention as soon as may be. And second, of affording to the detainee the earliest opportunity of making a representation. Both these procedural requirements are mutually reinforcing.”
Emphasising the constitutional purpose behind the statutory timeline prescribed under Section 8 of the NSA, Mr. Sibal explained that the five-day period, extendable to ten days in exceptional circumstances, exists to ensure that the detainee receives all relied-upon material at the earliest, well before the Advisory Board hearing. He submitted:“The expression ‘as soon as may be’ imports a requirement of immediacy… The whole purpose is that there must be a time lag between the supply of the documents and the sitting of the Advisory Board, so that the detainee has sufficient time to analyse the material and make an effective representation.”
It was further argued that supplying crucial material a day before the Advisory Board hearing defeats the constitutional mandate: “If you tell him that we will supply the documents one day before the Advisory Board meets, you are actually violating the very law, because the concept is that I must have enough time. That is the constitutional premise.”
Turning to the factual basis of the detention, Mr. Sibal submitted that the speech relied upon by the authorities did not justify detention on grounds of public order or security of the State. He stated:
“The tenor of this speech is not in any sense threatening the security of the State. The tenor of the speech is not to propagate violence, but to quell it. The tenor of this speech is consistent with national integrity and unity, which is exactly the opposite of what the detention order says.”
Mr. Sibal pointed out that the most proximate and relevant video, showing Wangchuk condemning violence and calling for peace, was neither supplied to the detainee within the statutory period nor placed before the detaining authority. He argued that this omission struck at the root of subjective satisfaction: “That vital video, which was central to what happened on the 24th, was not placed before the detaining authority. Keeping the detaining authority oblivious of what really happened is a very serious issue.”
He further submitted that selective reliance on material, while suppressing exculpatory evidence, amounted to legal malice: “If the detaining authority is aware of material which goes to the root of the incident, and that material is withheld, it would amount to malice and is another ground on which the detention order must be vitiated.”
Concluding this segment of arguments, Mr. Sibal urged the Court that once the violation of Article 22(5) read with Section 8 of the NSA was established, there was no necessity to examine the remaining grounds of challenge. He informed the Bench that a detailed written note addressing each ground of detention and the petitioner’s responses would be handed over for the Court’s consideration.
The Court will hear the remaining grounds of challenge on Monday.