PREVENTIVE DETENTION, HABEAS

CORPUS AND DELAY AT THE APEX

COURT: AN EMPIRICAL STUDY
Shrutanjaya Bhardwaj*
Based on a study of all reported habeas corpus judgments of the Supreme
Court in the twenty-year period from 2000 to 2019, this article presents an
empirical analysis of the delay in adjudication of habeas corpus petitions in
preventive detention cases. Three indicators are used for the study: first, the
total time spent between the date of detention order and the date of final dis-
posal by the Supreme Court; second, the time spent at the Supreme Court level
alone; and third, the time spent in actual detention till the matter was finally
disposed of by the Supreme Court (including an analysis of the extent to which
Supreme Court was responsibility for the delay). A more sharpened analysis
of only ‘successful’ habeas corpus petitions – i.e. the twenty cases where the
Supreme Court was the relief-granting court – is also presented. It is sug-
gested that habeas corpus is reduced to a meaningless remedy in many cases.

Ta ble of C ontents
I. Introduction.........................................1 A. Indicator I: Days Spent at the
A. Aim and Scope................................2 Supreme Court Level in the
B. Methodology...................................2 20 Cases Where The Supreme
C. Structure of the Paper....................2 Court Granted The First Relief
II. Preventive Detention...........................3 In Habeas Corpus Proceedings... 16
III. The Writ of Habeas Corpus................5 B. Indicator II: Days Spent in
IV. Empirical Findings: 2000-2019..........9 Detention In The 20 Cases
A. Indicator (I): Total Time Spent Where The Supreme Court
Between Detention Order and Granted The First Relief in
Supreme Court DECISION............9 Habeas Corpus Proceedings....... 17
B. Indicator (Ii): Time Spent at the VI. Possible Remedies.............................20
Supreme Court............................. 11 A. The Court Process.......................20
C. Indicator (Iii): Time Spent In B. Constitutional Torts.....................22
Detention Till Supreme Court VII. Conclusion.........................................23
Decision........................................ 12
V. ‘Successful’ Habeas Corpus
Petitions............................................. 15

* Practising advocate, New Delhi; LL.M., University of Michigan Law School (2019); B.A. LL.B.
(H.), National Law University, Delhi (2017). The author is grateful to Mr. Gopal Sankaranarayanan,
Ms. Aakanksha Bhardwaj, Mr. Ayush Baheti, Ms. Divya Dua, Ms. Aishwarya Kane and Mr. Saral
Minocha for their inputs on an earlier draft, and to the anonymous peer reviewer for extensive
meaningful suggestions that helped improve this paper.
2 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

I. INTRODUCTION

Empirically speaking, for an individual placed under illegal preven-

tive detention, is it a meaningful remedy to move the Supreme Court under Article
32 of the Constitution for a writ of habeas corpus? This is the broad question that
this article seeks to answer. Based on a study of all reported habeas corpus judg-
ments of the Supreme Court in preventive detention cases in the twenty-year pe-
riod from 2000 to 2019, this article suggests that the long delay in deciding habeas
corpus petitions renders the great writ close to meaningless, and that the Supreme
Court is responsible for a significant part of the delay.

A. AIM AND SCOPE

This study was motivated by my experiences at the Supreme Court,

both as an advocate participating in habeas corpus cases concerning preventive
detention and as an observer in other ongoing matters of a similar nature. It ap-
peared that the Court was not acting with the swiftness that matters of this nature
demand (see Parts II and III below). Sometimes, adjournments would be granted
for the asking. Sometimes, the period of adjournment would be several weeks.
On other occasions, many weeks would be granted to the government to complete
pleadings. This lack of a sense of urgency ran contrary to the importance tradition-
ally placed on the writ of habeas corpus (see Parts II and III below).

That preliminary and inconclusive observation paved the way for

this (relatively more systematic) study. The primary aim behind this study was
to understand whether the lack of swiftness alluded to above is an aberration or
the norm as far as the Supreme Court is concerned. The choice of the Supreme
Court for this study, therefore, was not a normative one – it was a product of my
proximity to the Court and my personal academic interest in understanding its
institutional behaviour. Accordingly, that choice should not be taken to suggest
that it is more important to study the Supreme Court’s record with habeas corpus
cases than that of the High Courts.

B. METHODOLOGY

Legal research engine SCC Online and Supreme Court’s official

website https://sci.gov.in were used to conduct this research.

A Boolean search with the query “habeas corpus” was run on SCC
Online. A time filter of 2000-2019 was placed. All 286 Supreme Court judgments
that appeared in the search results were read. Of the judgments that appeared in
search results, sixty-five pertained to preventive detention. Of these sixty-five, one
constitution bench judgment was excluded from the purview of this paper because
the facts of that case pertained to the year 1989 and the detenu had been released

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 3

in that year itself.1 The remaining sixty-four cases were analysed for the purposes
of this study. A full list of these sixty-four judgments is annexed as Annexure-1.

On the side, the Supreme Court’s website https://sci.gov.in was used

to ascertain the dates on which matters were filed in the Supreme Court.

C. STRUCTURE OF THE PAPER

Part II of the article discusses the concept of preventive detention.

Some questions it addresses are: What is preventive detention, and why does it
have special implications for personal liberty? Does preventive detention have
constitutional sanction, and are there attached safeguards? What are the laws in
India that allow governments to preventively detain individuals? Part III, then,
gives a brief overview of the writ of habeas corpus and its importance, both gen-
erally as well as in the specific context of preventive detention. It also explains
why delay in adjudication of habeas corpus petitions in preventive detention cases
would render the remedy illusory.

Part IV discusses empirical findings drawn from all the sixty-four

cases studied for the purposes of this article. Then, Part V discusses empirical
findings only in respect of those cases – twenty in number – where the Supreme
Court was the first and only court to grant relief against unlawful preventive de-
tention. Part VI briefly explores possible remedies that may make the writ of ha-
beas corpus more meaningful. Part VII concludes with some observations on the
need to reflect to find where the error lies.

II. PREVENTIVE DETENTION

As the name signifies, ‘preventive’ detention implies detaining an

individual not because she has committed an offence, but because, in the State’s
view, she is about to.2 No trial or judicial inquiry is conducted before a person is
taken into preventive detention.3 In fact, no judicial body is involved in the process
of authorisation of the detention.4 That process is dominated by the executive.5 The
order of detention is issuable by an executive authority, and later required to be
1
See Sunil Fulchand Shah v. Union of India (2000) 3 SCC 409.
2
For a historical analysis of preventive detention in India, See Pradyumna K. Tripathi, Preventive
Detention: The Indian Experience, 9(2) A m. J. Comp. Law 219 (1960); David H. Bayley, The
Indian Experience with Preventive Detention, 35(2) Pacific A ffairs 99 (1962); Charles Henry
Alexandrowicz, Personal Liberty and Preventive Detention, 3(4) JILI 445 (1961).
3
For focused discussions on this aspect, See Derek P. Jinks, The Anatomy of an Institutionalised
Emergency: Preventive Detention and Personal Liberty in India, 22 Mich. J. Intl. L. 311 (2001);
Niloufer Bhagwat, Institutionalising Detention without Trial, 13(11) EPW 510 (1978).
4
Article 22(3) of the Constitution specifically states that the requirement that an individual taken
into custody must be produced before the nearest magistrate within 24 hours shall not apply to
preventive detention cases.
5
For an analysis of this review process, see Derek P. Jinks, The Anatomy of an Institutionalised
Emergency: Preventive Detention and Personal Liberty in India, 22 Mich. J. Intl L. 311 (2001).

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4 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

confirmed by an ‘Advisory Board’ which is also an executive body.6 Before issu-

ing a detention order, the only prerequisite is that the issuing authority is subjec-
tively satisfied that the detention of the concerned individual is necessary for the
purpose(s) mentioned in the law under which the order is passed, such as national
security, prevention of currency smuggling, preventing of black marketing, main-
tenance of law and order, etc. The Advisory Board steps in only after a specified
time period to determine whether continued detention is necessary.7 No additional
layer of review is involved. Judicial oversight, therefore, is totally absent from this
process, which gives a free reign to the executive of the day and renders the power
of preventive detention susceptible to abuse.

Article 22 of the Constitution recognises the power of preventive

detention.8 But given that preventive detention involves deprivation of personal
liberty without trial, and given the paramount importance of the right of personal
liberty, Article 22 also provides for some strict procedural safeguards: (1) every
preventive detention order must be confirmed by an advisory board within three
months of detention,9 unless Parliament prescribes a longer period by law;10 (2) the
detaining authority must furnish to the detenu the grounds on which the deten-
tion order has been made;11 (3) the detenu must be given an opportunity to make
a representation against the detention order;12 and (4) the detention must not last
longer than the maximum period provided for the same under Parliamentary law.13

The last safeguard listed above is specifically relevant to this arti-

cle. Parliament has framed multiple laws authorising preventive detention in ac-
cordance with Article 22. Some examples are Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 (‘COFEPOSA’) which provides
for preventive detention when it is necessary to prevent smuggling,14 the National
Security Act, 1980 which provides for preventive detention to secure the defence of
India, national security and friendly relations with foreign states,15 the Prevention
of Blackmarketing and Maintenance of Supplies of Essential Commodities Act,
1980 (‘Blackmarketing Act’) which authorises preventive detention of persons who
are likely to disrupt the maintenance of supplies of essential commodities to the
community,16 the Maharashtra Prevention of Dangerous Activities of Slumlords,
Bootleggers, Drug-offenders, Dangerous Persons and Video Pirates Act, 1981

6
The Constitution of India, 1950, Art. 22(4).
7
Id.
8
The Constitution of India, 1950, Art. 22.
9
The Constitution of India, 1950, Art. 22(4).
10
The Constitution of India, 1950, Art. 22(7)(a).
11
The Constitution of India, 1950, Art. 22(5).
12
Id.
13
The Constitution of India, 1950, Art. 22(7)(b).
14
The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
15
National Security Act, 1980.
16
Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980.

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 5

which authorises preventive detention for the maintenance of public order,17 and
the ‘Goondas’ Acts of Tamil Nadu (1982),18 Karnataka (1985),19 Andhra Pradesh
(1986),20 and Telangana (1986) which also authorise preventive detention for the
maintenance of public order.21 Most of these laws specify one year as the maxi-
mum period of preventive detention. The Blackmarketing Act is an exception and
carries a maximum period of six months.22

Hence, preventive detention is temporary and the process is time-

bound. Crucially, whether the preventive detention is legal or illegal (grounds not
furnished, opportunity of representation not provided, etc.), the detenu would have
to be released after a period of six months or one year, as the case may be. This
maximum time limit is used in this study as a reference point against which the
meaningfulness of the habeas corpus process in preventive detention cases at the
Supreme Court can be measured.

The next section discusses the writ of habeas corpus, the sole judicial
remedy against illegal preventive detention orders – which is where the Supreme
Court enters the scene.

III. THE WRIT OF HABEAS CORPUS

The Latin words habeas corpus translate as “produce the body”.23

The writ of habeas corpus – one of the five main writs that the Supreme Court has
the power to issue under Article 32 of the Constitution – is issued when the court
finds that an individual has been placed under wrongful or unlawful confinement,
and implies a command that the detained individual shall be produced before the
court immediately. The writ hence has a close connection with personal liberty.
On account of this close connection, the Supreme Court treats habeas corpus as
a special writ:

17
Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders,
Dangerous Persons and Video Pirates Act, 1981.
18
The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas,
Immoral Traffic Offenders and Slum- Grabbers, Act, 1982.
19
The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers,
Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates Act, 1985.
20
The Andhra Pradesh Prevention of Dangerous Activities of Boot-Leggers Decoits, Drug-
Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986.
21
The Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders,
Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide
Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders,
Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders,
Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or
Financial Offenders Act, 1986.
22
Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980,
§13.
23
Merriam-Webster, Habeas Corpus, available at https://www.merriam-webster.com/dictionary/
habeas corpus (Last visited on May 6, 2020).

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“[T]o protect individual liberty the Judges owe a duty to safe-

guard the liberty not only of the citizens but also of all persons
within the territory of India. The most effective way of doing
the same is by way of exercise of power by the Court by issuing
a writ of habeas corpus. This facet of the writ of habeas corpus
makes it a writ of the highest constitutional importance being a
remedy available to the lowliest citizen against the most power-
ful authority”.24

Consistently with this sentiment, the Court has adopted much more
liberal and flexible procedural rules in the context of habeas corpus as compared
to other writs. Two examples of this liberal attitude deserve mention. First, the
Court has treated habeas corpus as an exception to the rule that writs – which are
public law remedies – are not readily issued to private individuals.25 For instance,
the writ of mandamus can only be issued against public authorities: “Such an order
is made against a person directing him to do some particular thing… which ap-
pertains to his office and is in the nature of a public duty.”26 But the court has taken
a much more liberal stance in the context of habeas corpus: “The writ of habeas
corpus issues not only for release from detention by the State but also for release
from private detention.”27 As a result, habeas corpus petitions are also filed in pri-
vate disputes such as those concerning child custody or abduction.28

Second, the court has repeatedly held that technical objections will
not come in the way of habeas corpus litigants.29 Some instances of this principle
may be considered. A habeas corpus petition cannot be dismissed on the ground
of imperfect pleadings, despite the well-settled proposition that a party in a writ
petition cannot be permitted to raise additional grounds at the hearing over and
above what is stated on affidavit.30 Equally, failure on part of the detenu to claim
the appropriate relief in her petition would not preclude consideration on merits.31
Likewise, where a new ground (which was not raised before the High Court) was
raised for the first time before the Supreme Court, the court refused to remand
the proceedings to the High Court for the agitation of the new ground; instead, it

24
Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781, ¶¶15-16.
25
Real Estate Agencies v. State of Goa, (2012) 12 SCC 170, ¶16.
26
Sohan Lal v. Union of India, AIR 1957 SC 529 : 1957 SCR 738, ¶7; Praga Tools Corpn. v. C.A.
Imanual, (1969) 1 SCC 585, ¶6; K.K. Saksena v. International Commission on Irrigation &
Drainage, (2015) 4 SCC 670, ¶39.
27
Mohd. Ikram Hussain v. State of U.P., AIR 1964 SC 1625 : (1964) 5 SCR 86, ¶12.
28
E.g. Nirmaljit Kaur (2) v. State of Punjab, (2006) 9 SCC 364; Rashmi Ajay Kumar Kesharwani v.
Ajay Kumar Kesharwani, (2012) 11 SCC 190; Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari,
(2019) 7 SCC 42.
29
Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781, ¶17; Cherukuri Mani v. State of A.P., (2015)
13 SCC 722, ¶6; Jagisha Arora v. State of U.P., (2019) 6 SCC 619, ¶6.
30
Mohinuddin v. District Magistrate, Beed, (1987) 4 SCC 58, ¶4; Abdul Nasar Adam Ismail v. State
of Maharashtra, (2013) 4 SCC 435, ¶5.
31
Cherukuri Mani v. State of A.P., (2015) 13 SCC 722, ¶6.

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 7

proceeded to quash the preventive detention order to avoid unnecessary prolong-

ment of the proceedings.32

It is therefore not disputed that habeas corpus is an exceptionally im-

portant remedy. I suggest, however, that the importance of habeas corpus can be
realised only if it is a meaningful rather than illusory remedy. In the specific con-
text of preventive detention, one aspect of meaningfulness is timely adjudication.

We have seen above that most laws permit preventive detention for a
period of one year. Whether the detention is legal or illegal, therefore, the detenu
would have to be released after a period of one year. In this backdrop, if the writ
of habeas corpus is to have any meaning for a detenu who has been preventively
detained illegally – i.e. in violation of the law or Article 22 of the Constitution – it
must be issued soon enough to ensure that the detenu does not have to go through
a substantial portion of the intended detention period.

Consider an illustration. If a detenu is illegally detained for an in-

tended period of one year, it would make little sense for a writ of habeas corpus
to be issued after the expiry of eleven months (say). This is not to suggest that
one month of gained freedom is worth nothing, but rather that eleven months of
lost freedom – contrary to law, on governmental whim, and without trial – reflect
badly on any system that cherishes personal liberty. The ‘guarantee’ under Article
32 of the Constitution would be rendered illusory if the Court allowed a substantial
part of the illegal detention to complete its course before issuing the writ of habeas
corpus.

What, then, is the ideal period within which the Court must act? We
can imagine this on a spectrum. If the writ is issued (almost or actually) after the
expiry of one year, it is virtually meaningless because the detenu stands to gain
nothing from it. On the other hand, if the writ is issued promptly – say on the
very date of moving the Court – the writ would be extremely meaningful for the
detenu. Between these two extremes lies a wide timeline. It is tough to put one’s
finger on the exact point on this scale at which the writ starts to become mean-
ingless. Perhaps it is better to frame the question differently and ask: what is the
minimum time that the Court reasonably needs to process a habeas corpus peti-
tion? Answers could range from ‘no time’ to ‘a couple of weeks’ (more on this in
Part VI). At the very least, however, it is clear that the writ should be issued sooner
rather than later.

We can take this inquiry one step further and analyse this from a sys-
temic viewpoint. What if delay of this kind becomes the norm? If the government
knows that illegal preventive detention orders are immune to judicial review for
the most part, would it have any incentive to comply with the legal and constitu-
tional requirements on preventive detention? In that sense, strictness and swiftness
32
Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781, ¶17.

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8 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

of judicial review is extremely important to signal to the government that it cannot

get away with illegal and arbitrary action. Conversely, judicial laxity and lenience
would send the message that the government can do what it wants without worry-
ing about due process of law.

The Supreme Court itself has advocated for an attitude of swiftness

in habeas corpus matters concerning preventive detention. In the Court’s words,
“the whole object of proceedings for a writ of habeas corpus is to make them
expeditious.[...] ‘The incalculable value of habeas corpus is that it enables the im-
mediate determination of the right to the appellant’s freedom’ (Lord Wright).”33
Two facets of the Court’s advocacy are central to this paper, for they demonstrate
that the Court treats urgency as not only desirable but also imperative.

First, urgency has been demanded from governments and Advisory

Boards in deciding representations made by detenus, such that a delay in decid-
ing the representation would be fatal to continued detention. For instance, in
Rajammal v. State of T.N. (‘Rajammal’)34 the court directed immediate release of
the detenu because there was an unexplained delay of just five days on part of the
appropriate government in deciding upon his representation.35 The Court held: “It
is not enough to say that the delay was very short. […] [T]he test is not the duration
or range of delay, but how it is explained by the authority concerned.”36 The deten-
tion was quashed on the sole ground that the concerned officials had been lax in
dealing with the detenu’s personal liberty.37

Second, delays committed by high courts in deciding habeas cor-

pus petitions have also been criticised. In Baby Devassy Chully v. Union of India
(‘Baby Devassy Chully’),38 the Court concluded its judgment with this observa-
tion: “[W]e remind all the High Courts that in a matter of this nature affecting the
personal liberty of a citizen, it is the duty of the courts to take all endeavours and
efforts for an early decision.”39 In Kamlesh Tiwari v. Union of India (‘Kamlesh
Tiwari’),40 the court went one step further and, noting that the date of expiration of
the preventive detention was near, directed the High Court to decide the petition
and deliver its judgment within four weeks.41 Hence, the Court has felt it proper to
command its fellow writ courts to decide habeas corpus petitions expeditiously.

33
Ranjit Singh v. State of Pepsu, AIR 1959 SC 843 : 1959 Supp (2) SCR 727, ¶4, citing Greene v.
Secy. of State for Home Affairs, 1942 AC 284.
34
Rajammal v. State of T.N., (1999) 1 SCC 417.
35
Id., ¶11.
36
Id., ¶8.
37
Id., ¶11.
38
Baby Devassy Chully v. Union of India, (2013) 4 SCC 531.
39
Id., ¶23.
40
Kamlesh Tiwari v. Union of India, (2016) 9 SCC 363.
41
Id., ¶2.

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 9

The two takeaways from the above discussion are these. First, owing
to the time-bound nature of preventive detention, it is imperative that the Supreme
Court’s judicial process in habeas corpus petitions be swift. Second, the Court
itself has recognised and advocated for a need to decide such petitions urgently.
The Court’s advocacy is internally consistent, of course. The question is whether
the Court practices what it preaches. In the next part, I discuss empirical findings
about the swiftness with which the Court deals with habeas corpus petitions.

IV. EMPIRICAL FINDINGS: 2000-2019

This part of the article contains the findings of the study and the in-
ferences that may be drawn therefrom. To reiterate, this research covers all those
reported judgments of the Supreme Court from 2000 to 2019 which deal with
habeas corpus in the context of preventive detention (sixty-four in total). Other
habeas corpus cases such as those involving parental abduction, kidnapping of mi-
nors, or other similar cases involving illegal violations of personal liberty have not
been included in the findings. This is because of the unique nature of preventive
detention – here, as already discussed, the proceedings are time-sensitive because
of outer limits prescribed by law.

The data collected is analysed below against the following indica-

tors: (i) total time between the date of detention order and the date of final disposal
by the Supreme Court; (ii) total time taken by the Supreme Court in disposing
of the habeas corpus petition (measured from the date of filing of the petition in
the Supreme Court); and (iii) time spent in detention till the matter was finally
disposed of by the Supreme Court. Indicators (i) and (iii) are different because
detenus in some cases may be released – on account of expiry of the maximum
period of detention, or owing to a writ of habeas corpus having been issued by the
High Court – before the petition is disposed of one way or the other. Indicator (i),
therefore, gives a general overview of the sense of urgency shown by the Supreme
Court in deciding habeas corpus petitions irrespective of whether the detenu re-
mained in detention throughout the litigation process. Indicator (iii) is more fo-
cussed on the time in fact spent in detention by the detenu before the case is finally
disposed of by the Supreme Court, and will include a separate analysis of how
much of that time was spent at the Supreme Court level.

A. INDICATOR (I): TOTAL TIME SPENT BETWEEN DETENTION

ORDER AND SUPREME COURT DECISION

The first indicator is the total time period that has lapsed until the
case is finally disposed of by the Supreme Court, beginning from the date of de-
tention order or the date of actual detention, whichever is earlier. This indicator
would demonstrate the utility (or futility) of the process of challenging preventive
detention orders all the way up to the Supreme Court.

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10 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

The necessary facts for this analysis were available for sixty-three
out of the sixty-four cases.42 A detailed table containing the names of the cases
along with the total time taken till the disposal of the case by the Supreme Court is
annexed as Annexure-2. The findings are recorded in the table below:

S. No. Head Data

1 Total number of cases studied (from 2000 till date) 63
2 Longest total time taken till final disposal 6040 days43
3 Shortest total time taken till final disposal 63 days44
4 Average total time taken till final disposal 953 days45
5 Median time taken till final disposal 478 days
6 Number of cases where the total time taken 40
exceeded the maximum period of detention under
the relevant law (6 months or 1 year, as the case may
be)
7 Percentage of cases where the total time taken 63.49 percent
exceeded the maximum period of detention under
the relevant law (6 months or 1 year, as the case may
be)

At least two disappointing inferences can be drawn from this data.

First, the average time spent in a habeas corpus petition in a preventive detention
case is more than two years and seven months, while the median time spent is
close to one year and four months. Second, in 63.49 percent of the cases (i.e. 40 out
of 63 cases), the time spent in the challenge was more than one year. Given that the
detention order would itself lapse in one year (or earlier), writ proceedings in the
Supreme Court appear to be a futile exercise for the redressal of wrongful deten-
tion – to a detainee who remained in detention throughout the period prescribed
in her detention order (one year or less), the outcome of the habeas corpus petition
would make no material difference to her. This is so even if the Supreme Court
eventually quashed the detention order as illegal, because she would have already
42
From the reported judgment in State of T.N. v. E. Thalaimalai, (2000) 9 SCC 751, neither the date
of detention order nor the date of detention is clear. Hence, it was not possible to precisely calcu-
late the total time.
43
State of T.N. v. Kethiyan Perumal, (2004) 8 SCC 780.
44
Rupesh Kantilal Savla v. State of Gujarat, (2000) 9 SCC 201.
45
These unusually large numbers should not be taken to imply that the detenu was also in custody
for these many days. This is so for three reasons. First, to re-emphasise, the maximum period
of detention is one year under most preventive detention laws, so it should be presumed that the
detenu was released after that period. Second, though rarely, some detention orders are challenged
at the pre-execution stage without the proposed detenu having surrendered to the authorities. [See
State of Maharashtra v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613; Union of India v. Vidya
Bagaria, (2004) 5 SCC 577; Union of India v. Muneesh Suneja, (2001) 3 SCC 92] There is no de-
tention in such cases. Third, even within one year, detainees are sometimes released on account of
either (i) shorter dates specified in their detention orders or (ii) court orders directing their release,
e.g. where the High Court allows the petition of habeas corpus directing immediate release of the
detenu, and the Supreme Court hears an appeal against the High Court order without staying it.

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 11

served the whole period required under that illegal detention order. ‘[T]he whole
object’ behind habeas corpus proceedings, i.e. ‘to make them expeditious’,46
seems to have been lost somewhere.

But this analysis tells us only that the overall system of preventive
detention and associated remedies is inadequate. While that is undoubtedly an im-
portant finding, it does not follow that the fault (or any fault) lies with the Supreme
Court. Time could have been lost by (i) the detenu or her lawyers through lax be-
haviour causing delays in the filing or planning processes, (ii) the advisory board
and/or the government in not promptly confirming or nullifying the detention or-
der when a representation is made by the detenu, and (iii) the High Courts, where
habeas corpus petitions are often first filed. To understand the precise role played
by the Supreme Court in this systemic problem, therefore, let us only look at how
much time was spent at the Supreme Court level alone in these cases.

B. INDICATOR (II): TIME SPENT AT THE SUPREME COURT

For this examination, the relevant dates are (A) the date on which
the Supreme Court was moved (either in a fresh habeas corpus writ petition or
in appeal against a High Court judgment) and (B) the date on which the Supreme
Court decided the appeal/petition. A detailed table containing the full list of the
sixty-three cases analysed along with the time taken at the Supreme Court level
alone is annexed as Annexure-3. The findings from this study are recorded in the
table below:

S. No. Head Data

1 Total number of cases studied (from 2000 till date) 6347
2 Longest time taken at the Supreme Court 3732 days48
3 Shortest total time at the Supreme Court 34 days49
4 Average total time taken at the Supreme Court 528 days
5 Median total time taken at the Supreme Court 197 days
6 Number of cases where number of days spent at the 23
Supreme Court exceeded the maximum period of
detention under the relevant law (6 months or 1 year, as
the case may be)

46
Ranjit Singh v. State of Pepsu, AIR 1959 SC 843 : 1959 Supp (2) SCR 727, ¶4, citing Greene v.
Secy. of State for Home Affairs, 1942 AC 284.
47
For D. Anuradha v. Joint Secy., (2006) 5 SCC 142, the Supreme Court website does not mention
the date on which the Supreme Court was moved.
48
Chandra Kumar Jain v. Union of India, (2015) 11 SCC 427. The detenu died during the pendency
of the petition.
49
Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781.

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12 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

S. No. Head Data

7 %Percentage of cases where number of days spent at 36.51 percent
the Supreme Court exceeded the maximum period of
detention under the relevant law (6 months or 1 year, as
the case may be)

On an average, the court took one year and five months to decide a
habeas corpus case in preventive detention matters. The median figure is close to
seven months. In three or four out of every ten cases – 36.51 percent of the total
cases, to be precise – the time taken at the Supreme Court level was greater than
the maximum period of preventive detention prescribed in the relevant law, which
frustrates the very point of the appeal/petition. In other words, at least 36 percent
of the cases would in any event have been rendered infructuous before the court
delivered its judgment. It can hence safely be said that the Supreme Court has
played a significant role in rendering habeas corpus proceedings meaningless.

As already discussed,50 these large figures and inferences do not

show that the detenus were in detention for the entire period of one year. Hence,
to draw inferences regarding the practical impact of this institutional delay on
personal liberty, it is crucial to study a third set of figures.

C. INDICATOR (III): TIME SPENT IN DETENTION TILL

SUPREME COURT DECISION

This third analysis asks: how long did the detenus in fact spend in
detention before their cases were finally decided by the Supreme Court? This
analysis is important because it reveals the overall meaningfulness of the judicial
process for the detenu. A list of the 59 cases studied along with the relevant data
is annexed as Annexure-4. The inferences drawn from the data are given in the
table below.51

S. No. Head Data

1 Total number of cases studied (from 2000 till date) 5952
2 Most time spent in detention till Supreme Court 3846 days53
decision

50
Supra note 45.
51
For all cases which were decided after a total period of one year, it has been assumed that the
detenu was in custody for 366 days (unless the judgment indicates otherwise). There are 14 such
cases. Where the judgment states that the detenu remained in custody for a shorter or longer pe-
riod, that correct period has been used.
52
Four cases – Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 14; State of Maharashtra v.
Bhaurao Punjabrao Gawande, (2008) 3 SCC 613; Union of India v. Vidya Bagaria, (2004) 5 SCC
577; and Union of India v. Muneesh Suneja, (2001) 3 SCC 92 – concerned a pre-execution chal-
lenge to the detention order. Hence, there was no detention involved in these cases.
53
State of T.N. v. Kethiyan Perumal, (2004) 8 SCC 780.

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 13

S. No. Head Data

3 Least time spent in detention till Supreme Court 58 days54
decision
4 Average time spent in detention 344 days
[Note: If the two cases where the maximum
permissible detention period was 6 months –
Bhupendra v. State of Maharashtra, (2008) 17 SCC
165 (183 days) and Rupesh Kantilal Savla v. State of
Gujarat, (2000) 9 SCC 201 (63 days) – are excluded,
i.e. if only the ‘1-year’55 cases are considered for this
calculation, the average time spent in detention in
the other 57 cases comes to 352 days.]
5 Median time spent in detention 322 days
[Note: If only the “1-year” cases are considered for
this calculation (like in S. No. 4 above), the median
time spent in detention in the remaining 57 cases
comes to 326 days.]
5 Number of cases where number of days spent in 18
detention exceeded or equaled the maximum period “1-year”: 17
of detention under the relevant law (6 months or 1 “6-month”: 1
year, as the case may be)
6 %Percentage of cases where number of days spent in 30.51 percent
detention exceeded or equaled the maximum period
of detention under the relevant law (6 months or 1
year, as the case may be)
[Note: If calculated only for ‘1-year’ cases, this
figure is 29.82 percent.]
7 Average time spent in detention in the ‘1-year’ 255 days
cases not covered at S. No. 5, i.e. cases where the
maximum period of detention was 1 year but time
actually spent in detention was less than 1 year.56

On an average, detenus in the ‘1-year’ cases spent 352 days – 96

percent of the one-year maximum period – in custody before the petition was dis-
posed of by the court. In nearly three out of every ten cases, detenus completed
their full term of detention before their petition was disposed of, and in the remain-
ing seven cases, they spent 255 days – nearly 70 percent of the one-year maximum
period – before the Supreme Court gave its judgment.57

54
Commr. of Police v. C. Anita, (2004) 7 SCC 467.
55
This phrase is used loosely to signify cases where the maximum period of detention prescribed un-
der the relevant law was 1 year. The phrase “6-month” cases is used later in a similar connotation.
56
Analogous figures for the “6-month” cases are deliberately avoided because there are only two
such cases.
57
Analogous figures for the “6-month” cases are deliberately avoided because there are only two
such cases.

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14 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

All of this delay, however, is not attributable to the Supreme Court.

The table above only demonstrates the total time spent in detention by the detenu
before the final decision on her habeas corpus petition by the Supreme Court. It
is possible that much of that time was lost before the Supreme Court was even
moved. To track the Supreme Court’s contribution to this delay, then, it is impor-
tant to sharpen this data.

Of the 59 cases discussed in the table above, the detenus in twenty-

two cases58 were released59 before the Supreme Court was moved. No part of the
prolonged detention in those cases, therefore, can fairly be attributed to the Court.
In addition, the date of moving the Supreme Court could not be ascertained in
one case.60 Of the remaining thirty-six cases, in some cases detenus were released
during the pendency of the habeas corpus matter in the Supreme Court, whereas
in other cases they remained in custody at least until the date of decision by the
Supreme Court. An analysis of the said thirty-six cases reveals the following:

S. No. Head Data

1 Total number of cases studied (from 2000 till date) 36
2 Most detention time attributable to Supreme Court 301 days61
3 Least detention time attributable to Supreme 20 days62
Court
4 Average detention time attributable to Supreme 111 days
Court
5 Median detention time attributable to Supreme 102.5 days 63
Court

58
Khaja Bilal Ahmed v. State of Telangana (2020) 13 SCC 632 : (2019) SCC OnLine SC 1657; Union
of India v. Saleena (2016) 3 SCC 437; State of T.N. v. Nabila (2015) 12 SCC 127; Chandra Kumar
Jain v. Union of India (2015) 11 SCC 427; State of T.N. v. Abdullah Kadher Batcha (2009) 1 SCC
333; Union of India v. Ranu Bhandari (2008) 17 SCC 348; State of T.N. v. R. Sasikumar (2008)
13 SCC 751; Bhupendra v. State of Maharashtra (2008) 17 SCC 165; Chandrakant Baddi v. ADM
& Police Commr. (2008) 17 SCC 290; Collector v. S. Sultan (2008) 15 SCC 191; Union of India v.
Laishram Lincola Singh (2008) 5 SCC 490; Union of India v. Yumnam Anand M. (2007) 10 SCC
190; Mukesh Tikaji Bora v. Union of India, (2007) 9 SCC 28; Alpesh Navinchandra Shah v. State
of Maharashtra (2007) 2 SCC 777; Union of India v. Chaya Ghoshal (2005) 10 SCC 97; State of
T.N. v. Kethiyan Perumal (2004) 8 SCC 780; T.P. Moideen Koya v. Govt. of Kerala, (2004) 8 SCC
106; State of U.P. v. Sanjai Pratap Gupta (2004) 8 SCC 591; Commr. of Police v. C. Anita, (2004)
7 SCC 467; Union of India v. Sneha Khemka (2004) 2 SCC 570; Union of India v. Paul Manickam
(2003) 8 SCC 342; State of T.N. v. Balasubramaniam (2001) 3 SCC 123.
59
Where no specific date of release was found mentioned in the judgment, it was assumed that the
detenu would have been released from custody after the maximum period of detention specified
in the relevant law expired.
60
D. Anuradha v. Joint Secy. (2006) 5 SCC 142.
61
A. Geetha v. State of T.N. (2006) 7 SCC 603.
62
Baby Devassy Chully v. Union of India (2013) 4 SCC 531.
63
A. Maimoona v. State of T.N. (2006) 1 SCC 515 (102 days) and R. Keshava v. M.B. Prakash (2001)
2 SCC 145 (103 days).

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 15

Hence, in the cases where the detenu was in preventive detention

as on the date on which the Supreme Court was moved, 111 days of custody on
an average (and 103 days as a median value) could be attributed to the Supreme
Court before the habeas corpus petition was decided one way or the other. In other
words, the detenu remained in custody for approximately four months while the
case remained pending with the Supreme Court. Seen in light of the average deten-
tion figure of 344 days discussed above, it would appear that the Supreme Court
is anyway not in a position to help with the bigger part of the average detention
period. Yet, it is significant that the Court takes as long as four months on an aver-
age on a habeas corpus matter while the detenu remains in custody. As we shall
discuss later (see Part VI below), there is no reason for the Court to take such a
long time in deciding these matters.

The findings of the three analyses conducted above can now be

summarised:

i. On an average, the Supreme Court gave its decision after a period of 953
days calculated from the date of detention order or actual detention (which-
ever is earlier),

ii. On an average, the Supreme Court gave its decision after the detenu spent
a period of 528 days agitating the habeas corpus petition at the Supreme
Court level alone, and

iii. On an average, the Supreme Court gave its decision after the detenu spent
a period of 344 days in detention, of which 111 were attributable to the
Supreme Court.

This, I suggest, raises serious concerns about the Supreme Court’s

institutional handling of habeas corpus petitions in preventive detention cases.
It shows that the Supreme Court has not walked the talk on preserving personal
liberty; to the contrary, it has not treated these matters as urgent and requiring
swift action.

V. ‘SUCCESSFUL’ HABEAS CORPUS PETITIONS

This part of the article is dedicated to examining only those habeas

corpus petitions – total twenty in number – where the Supreme Court issued the
writ of habeas corpus and was the first court to grant relief. This is where (i) the
habeas corpus petition was filed in the Supreme Court under Article 32 and al-
lowed, or (ii) the petition was filed in the High Court under Article 226, but be-
cause the High Court refused to grant relief, the detenu appealed to the Supreme
Court which reversed the High Court’s decision. These cases are being analysed
separately because it is here that the Supreme Court made the most material dif-
ference to the detenu’s fate.

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16 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

Like the analysis conducted in the previous section, this analysis will
be conducted on two indicators: (I) time spent at the Supreme Court level alone
before the Supreme Court granted relief, and (II) time spent in detention before the
Supreme Court granted relief (and the detention time attributable to the Supreme
Court). A full list of these twenty cases along with data on the said indicators is
annexed as Annexure-5.

A. INDICATOR I: DAYS SPENT AT THE SUPREME COURT

LEVEL IN THE 20 CASES WHERE THE SUPREME COURT
GRANTED THE FIRST RELIEF IN HABEAS CORPUS
PROCEEDINGS

For the twenty successful cases, the following chart depicts the total
number of days spent at the Supreme ourt level alone before the matter was finally
disposed of:

On an average, 159 days were spent at the Supreme Court level alone
(out of the 386 days spent in total since the date of detention order) in deciding
these twenty cases. The corresponding median figure is 118.5 days. In two cases,64
the Supreme Court itself took longer than one year to decide the petition (448
and 377 days respectively). To ascertain the impact of this laxity on the personal
liberty of detenus, it may be worthwhile to study the number of days for which
the detenus languished in illegal preventive detention before the Supreme Court
granted relief in their respective cases, and how much of that delay could be at-
tributed to the Supreme Court.

64
K.S. Nagamuthu v. State of T.N. (2006) 4 SCC 792; Chandrakant Baddi v. ADM & Police Commr.
(2008) 17 SCC 290.

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 17

B. INDICATOR II: DAYS SPENT IN DETENTION IN THE 20

CASES WHERE THE SUPREME COURT GRANTED THE
FIRST RELIEF IN HABEAS CORPUS PROCEEDINGS

The following chart depicts the total time spent in detention by the
detenu before his/her release was ordered by the Supreme Court in the abovemen-
tioned twenty cases:65

To re-emphasise, these charts and figures must be seen in context

of the fact that most laws prescribes a maximum period of one year for preven-
tive detention. This is true of nineteen out of the twenty cases depicted in the
charts above. The laws involved are the COFEPOSA,66 the National Security
Act,67 and the ‘Goondas’ Acts of Andhra Pradesh,68 Karnataka,69 Telangana,70 and
Tamil Nadu.71 The sole exception is Case No. Twenty, concerning the Prevention
65
The case depicted at S. No. 11 – Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 14 – was a
case of pre-execution challenge. Hence, no detention was involved.
66
The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, §13.
67
National Security Act, 1980, §13.
68
The Andhra Pradesh Prevention of Dangerous Activities of Boot-Leggers Decoits, Drug-
Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, §13.
69
The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers,
Goondas, Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates Act, 1985, §13.
70
The Telangana Prevention of Dangerous Activities of Boot-Leggers, Dacoits, Drug-Offenders,
Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide
Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders,
Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders,
Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or
Financial Offenders Act, 1986, §13.
71
The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas,
Immoral Traffic Offenders and Slum- Grabbers, Act, 1982, §13.

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18 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

of Blackmarketing and Maintenance of Supplies of Essential Commodities Act,

1980, which prescribes a maximum period of 6 months.72

As evident, in four out of the twenty cases (20 percent), relief came
from the Supreme Court after the one-year period of detention under an illegal
order had already passed. Further, in at least five others, the figure was so close
to 366 (351, 358, 360, 361, 363) that these cases can fairly be clubbed with the
aforementioned four thus taking the total number of futile cases up to nice (forty-
five percent of the total twenty). If the bracket were to be further expanded to
include all cases where six months (i.e. half of the detention period) or more were
spent in detention before relief came, the figure would increase to sixteen out of
twenty (eighty-five percent) cases. On an average, detenus spent 278 days (i.e. nine
months) in wrongful detention before relief came from the Supreme Court.

Admittedly, not all of this delay is necessarily attributable to the

Supreme Court. It is possible that much of the delay was caused prior to moving
the Supreme Court. Yet, there is no reason why the Supreme Court should turn a
blind eye to the period of preventive detention already undergone by the detenu.
The fact that a detenu has already spent nine out of the twelve months in custody
should prompt the Court to speed up the adjudicatory process – for if the detention
is illegal, it deserves to be quashed at the earliest.

Nonetheless, for better visibility into the Supreme Court’s contribu-

tion to this delay, let us map the period for which, on an average, a detenu was in
custody at the time the matter was being agitated at the Supreme Court. In four
out of the twenty cases,73 the detenu was not in custody at the time the Supreme
Court was moved. Data for the remaining sixteen cases is analysed in the table
given below:

S. No. Head Data

1 Number of cases studied 16
2 Most detention time attributable to Supreme Court 202 days74
3 Least detention time attributable to Supreme Court 34 days75
4 Average detention time attributable to Supreme 95 days
Court
5 Median detention time attributable to Supreme Court 76.5 days76

72
Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980,
§13.
73
Khaja Bilal Ahmed v. State of Telangana (2020) 13 SCC 632 : 2019 SCC OnLine SC 1657; Deepak
Bajaj v. State of Maharashtra (2008) 16 SCC 14; Chandrakant Baddi v. ADM & Police Commr.
(2008) 17 SCC 290; Alpesh Navinchandra Shah v. State of Maharashtra (2007) 2 SCC 777.
74
T.V. Sravanan v. State (2006) 2 SCC 664.
75
Ummu Sabeena v. State of Kerala (2011) 10 SCC 781.
76
Rekha v. State of T.N. (2011) 5 SCC 244 (76 days) and Cherukuri Mani v. State of A.P. (2015) 13
SCC 722 (77 days).

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 19

To view the detention time spent at the Supreme Court level as a

component of the total time spent by the detenu in preventive detention, the graph
given below would be useful. It should be noted that this comparison is not neces-
sarily relevant in judging the Supreme Court’s swiftness or laxity, which should
be judged on its own terms. Nonetheless, the graph is being provided to present a
fuller picture of the detention period as it appears to the detenu:

A few observations may be made at this point. In four out of the

sixteen cases – depicted at serial numbers 5, 11, 14, and 16 – the time spent in de-
tention while agitating the matter at the Supreme Court level was greater than the
time spent in detention prior to moving the Supreme Court. In one case – depicted
at serial number 6 – the time spent in detention prior to moving the Supreme Court
(182 days) was almost equal to the detention time during Supreme Court proceed-
ings (179 days). In at least these five cases, therefore, the Supreme Court’s contri-
bution to the delay is equally or more significant than delay caused at earlier levels.

One of these cases – the one at serial number 6 – deserves a special

mention for the painful irony it depicts. In Pebam Ningol Mikoi Devi v. State of
Manipur (‘Pebam Ningol Mikoi Devi’),77 the Supreme Court ordered release of
the detenu after 361 days of unlawful custody on the ground that the detaining
authority was unable to explain the delay of seven days in forwarding the detenu’s
representation to the Central Government.78 No words of regret, however, came
from the Supreme Court for the delay on its end – the Court took a total of 192 days
to decide the matter, out of which the detenu remained in detention for a period of
179 days (six months).

77
Pebam Ningol Mikoi Devi v. State of Manipur (2010) 9 SCC 618.
78
Id., ¶¶36-37.

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20 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

The findings from the above analyses can be summed up as follows.

Before an illegal order of preventive detention was quashed by the Supreme Court
in habeas corpus proceedings, on an average, a detenu spent 159 days agitating the
matter at the Supreme Court level. Further, a detenu spent 278 days in detention
on an average, out of which ninety-five days (a little over three months) were spent
while the matter was pending at the Supreme Court.

VI. POSSIBLE REMEDIES

Should the Supreme Court’s grandiloquence on the value of personal

liberty be taken seriously at all? If a wrongful detention order can keep an indi-
vidual behind bars for nine out of twelve months on an average without any real
consequences, can it be said that the rule of law is intact? There is a dire need
for the Supreme Court to reflect, as an institution, upon where the error lies – in
insisting upon a counter-affidavit and granting several weeks to the Government
for its preparation, in granting adjournments on ordinary grounds such as one
specific law officer being “on his legs” in another courtroom, in not having dedi-
cated benches to decide upon matters of personal liberty, in not prioritising habeas
corpus matters over others (such as by placing them on top of the board),79 or
somewhere else.

A. THE COURT PROCESS

A detailed inquiry into possible remedies is beyond the aim of this

paper. However, to facilitate the search for a remedy, it may be useful to think
about the maximum time that the Supreme Court should ideally take in deciding
a habeas corpus matter of this nature. An ordinary matter at the Supreme Court
involves four broad stages after filing is complete. The first stage is the admission
hearing, on which date the Court does not require the presence of the respondents
and decides whether the petition or appeal facially has some merit. If the Court
finds facial merit, it issues notice to the respondents and grants them time – ordi-
narily around four weeks – to file a response or counter-affidavit to the petition or
appeal. The second stage is the filing of the counter-affidavit as permitted by the
Court. The respondents may or may not file it within the prescribed time limit.
Often, they do not, and obtain more time from the Court based on some or the
other excuse. Once the counter-affidavit is filed, the registry of the Supreme Court
processes the matter to be listed before the Court again. The third stage is the
after-notice hearing, on which the Court may grant time – ordinarily around two
to three weeks – to the petitioner to file a rejoinder to the counter-affidavit filed
by the respondents. After the rejoinder is filed, the Court in the next hearing fixes
79
In an interview published last year, Justice (Retd.) Madan Lokur makes this point: “Habeas-
corpus writs should be taken up on priority, and any exception should be treated as an aberration.”
The Caravan, Interview with Justice (Retd.) Madan Lokur, November 29, 2019, available at https://
caravanmagazine.in/law/madan-lokur-interview-national-security-cannot-bar-adjudication-of-
fundamental-rights (Last visited on May 6, 2020).

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 21

a date for final arguments on the matter. Typically, a two to four-week gap can be
expected before the final hearing takes place. The fourth stage is the final hearing
on which arguments on merits take place. A minimum of around three months,
therefore, can easily be expected to be spent in an ordinary matter. In practice,
however, it is seen that cases go on for much longer, since each of the above stages
may further involve their own peculiar delays, such as adjournments and time
extensions – which might explain the unusually large numbers discussed in the
findings above.

In this backdrop, if habeas corpus matters are to proceed with any

speed, they must be treated as an exceptional category. A few preliminary obser-
vations can be made here in this respect, leaving details to be filled in by future
research. First, the requirement for filing a counter-affidavit by the government
in preventive detention matters should be re-assessed. It is settled law that the
counter-affidavit cannot supplement or add to the grounds of detention already
furnished to the detenu as per the provisions of Article 22.80 Further, if the counter-
affidavit discloses any new material which was not communicated to the detenu
but relied upon for the detention, the detention would breach Article 22 and would
have to be struck down on that count alone.81 The judicial review is therefore lim-
ited to examining whether (i) the grounds of detention were promptly communi-
cated to the detenu,82 (ii) the detenu was timely permitted to make a representation
to the Advisory Board or the appropriate government against her detention;83 (iii)
the facts based on which the detenu is detained have a proximate nexus with the
aim sought to be achieved by detaining her,84 and (iv) any of the grounds stated in
the detention order are vague or irrelevant.85 Given that these aspects are usually
well-documented and cannot be refuted by showing additional material – except
perhaps (ii) which may admit of justifications for the delay – a counter-affidavit
may not be relevant at all in most habeas corpus matters concerning preventive
detention. The Court should therefore apply its mind to the documents produced
by the petitioner on the very first hearing (admission stage), and if it finds that the
well-settled rules of preventive detention have been breached by the respondent(s)-
government(s), it should issue an ex-parte writ of habeas corpus. If required, the
respondent(s) may be permitted to file a counter-affidavit once the detenu is re-
leased from custody. This suggestion would require the Court to depart from its

80
See, e.g., State of Bombay v. Atma Ram Sridhar Vaidya AIR 1951 SC 157 : 1951 SCR 167, Kania,
C.J. (for himself and 2 others), at ¶9-10, ¶17; Ramveer Jatav v. State of U.P. (1986) 4 SCC 762, at
¶2.
81
Sk. Hanif v. State of W.B. (1974) 1 SCC 637, at paras 11, 14; Sasthi Keot v. State of W.B. (1974) 4
SCC 131, at para 2; Fogla v. State of W.B. (1974) 4 SCC 501, at ¶3-4.
82
The Constitution of India, 1950, Art. 22; Shalini Soni v. Union of India (1980) 4 SCC 544.
83
Id.
84
Supt., Central Prison v. Dr. Ram Manohar Lohia, (1960) 2 SCR 821, at paras 13-14; Rameshwar
Shaw v. District Magistrate, Burdwan AIR 1964 SC 334 : (1964) 4 SCR 921, at para 10.
85
Mohd. Yousuf Rather v. State of J&K (1979) 4 SCC 370, at ¶8, ¶10-12, ¶14; Prabhu Dayal v.
District. Magistrate, Kamrup (1974) 1 SCC 103, at ¶13.

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22 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

previously held rule that an ex parte writ of habeas corpus should be issued only
in exceptional cases of urgency.86

Second, even if the Court deems it proper to ask for a counter-affida-

vit before deciding on the detenu’s release, it should not give more than one week to
the respondents to file the same. Such time would be sufficient because all material
required for the counter-affidavit is already available with the respondents. Third,
in the same spirit, only a few days’ time should be granted to the petitioner for
filing a rejoinder if necessary, after which the matter must immediately be listed
for final arguments. In this manner, the entire process can promptly be completed
within a matter of two weeks instead of being stretched to many months. Fourth,
the Court should be strict in ensuring that neither adjournments nor time exten-
sions are granted at the government’s request, unless unavoidable delay is shown.

B. CONSTITUTIONAL TORTS

There is also a need to explore meaningful remedies in cases where

preventive detention orders are found to be manifestly unlawful. In the past, the
court has not hesitated in granting monetary relief – which may be labelled as
“compensation”, “damages” or “costs” – upon finding a gross violation of funda-
mental rights. Indeed, the first known case where the court granted such a relief as
a public law remedy under Article 32 was a habeas corpus petition.87 Finding the
continued detention of the petition even after his sentence period was over to be
illegal, the court had held:88

“Article 21 which guarantees the right to life and liberty will

be denuded of its significant content if the power of this Court
were limited to passing orders of release from illegal detention.
One of the telling ways in which the violation of that right can
reasonably be prevented and due compliance with the mandate
of Article 21 secured, is to mulct its violators in the payment of
monetary compensation.”

Ordinarily, grant of compensation is understood as a private law or

tort law remedy to be agitated in civil courts. That is so even where civil claims
are made against the state. The Supreme Court has held: “Every illegal detention
irrespective of its duration, and every custodial violence, irrespective of its degree
or magnitude, is outright condemnable and per se actionable.”89 Yet, constitutional
courts may award compensation even under Articles 32 or 226 (as the case may be)
– a concept more recently branded as “constitutional torts”90 – where the claims

86
See Sebastian M. Hongray v. Union of India (1984) 1 SCC 339, at ¶31.
87
Rudul Sah v. State of Bihar (1983) 4 SCC 141.
88
Id., ¶10.
89
Sube Singh v. State of Haryana, (2006) 3 SCC 178, ¶47.
90
See generally MCD v. Uphaar Tragedy Victims Assn. (2011) 14 SCC 481.

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 PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 23

of rights violation are ‘patent and incontrovertible’, ‘gross’, and ‘of a magnitude to
shock the conscience of the court’,91 or where malice92 or gross abuse of power93
by state officials is established. Indeed, Article 32 has been understood as casting
an obligation on the Supreme Court to forge new tools, including monetary relief
where necessary, to ensure the protection of fundamental rights.94 It is submitted
that the court should consider expanding the scope of constitutional torts in the
context of preventive detention cases where the detenu’s personal liberty is unlaw-
fully infringed for a substantial period of time, whether because of delays at the
hands of state officials or of constitutional courts themselves.

VII. CONCLUSION

The empirical findings of the study should be seen in view of the fact
that most preventive detention laws prescribe one year as the maximum period
of detention. The findings can be summed up under three heads. First, the total
time spent from the date of detention order or actual detention till the date of final
disposal by the Supreme Court is 953 days on an average and 478 days by median
value (based on a study of 63 cases). In 63.49 percent of the cases studied, the total
time taken exceeded the maximum period of detention under the relevant law (six
months or one year, as the case may be). Second, out of the said total time, the
time spent by the detenu in agitating the matter at the Supreme Court level alone is
528 days on an average and 197 days by median value (based on a study of sixty-
three cases). In 36.51 percent of the cases studied, the number of days spent at the
Supreme Court level alone exceeded the maximum period of detention under the
relevant law (six months or one year, as the case may be). If we reduce the sample
and consider only those twenty cases where the Supreme Court was the first Court
to grant relief, i.e. only the ‘successful’ cases at the Supreme Court, the time spent
in agitating the matter at the Supreme Court level alone is 159 days by a detenu on
an average, and 119 days as a median value. Third, on an average, a detenu spent
344 days (over eleven months) in custody before the case was finally decided by
the Supreme Court, of which 111 days (almost four months) lapsed while the mat-
ter was pending with the Supreme Court (based on a study of fifty-nine cases). If
we reduce the sample size and consider only the ‘successful’ cases at the Supreme
Court, then on an average, a detenu spent 278 days (over nine months) in illegal
detention, of which ninety-five days (a little over three months) lapsed while the
matter was pending at the Supreme Court.

This delay is unjustifiable because habeas corpus petitions can be de-

cided summarily, i.e. within a period of two weeks from the date of filing. Further
still, the filing of a counter-affidavit by the State serves no real purpose in a pre-
ventive detention proceeding. Hence, on the very first day (admission hearing),
91
Sube Singh v. State of Haryana (2006) 3 SCC 178, ¶46.
92
S. Nambi Narayanan v. Siby Mathews (2018) 10 SCC 804, ¶40.
93
N. Sengodan v. State of T.N. (2013) 8 SCC 664, ¶50.
94
Nilabati Behera v. State of Orissa (1993) 2 SCC 746, ¶20.

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24 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

the Court should apply its mind to the facts disclosed in the petition and, if it finds
the detention to be illegal, direct the detenu to be released under an ex parte writ
of habeas corpus. The time wasted in filing and exchanging pleadings as well as
through adjournments should be minimised. Finally, where the Court finds the de-
tention to be illegal, it should consider invoking the concept of constitutional torts
and granting monetary compensation to detenus for illegal deprivation of liberty.

The Supreme Court has performed poorly even when measured

against its own rhetoric on the importance of the writ of habeas corpus. One sin-
cerely hopes that through reflection and invention of new kinds of remedies, the
institutional handling of matters of liberty at India’s top constitutional court will
soon – if not immediately ­– improve. If the only remedy against illegal preven-
tive detention is a token declaration of illegality after the detention has already or
almost finished its course, there is little meaning in calling it a ‘remedy’. It is too
little and too late.

Annexure-1: List of Cases Studied (in Alphabetical Order)

1. A. Geetha v. State of T.N., (2006) 7 SCC 603

2. A. Maimoona v. State of T.N., (2006) 1 SCC 515

3. A.C. Razia v. Govt. of Kerala, (2004) 2 SCC 621

4. Abdul Nasar Adam Ismail v. State of Maharashtra, (2013) 4 SCC 435

5. Adishwar Jain v. Union of India, (2006) 11 SCC 339

6. Alpesh Navinchandra Shah v. State of Maharashtra, (2007) 2 SCC 777

7. Baby Devassy Chully v. Union of India, (2013) 4 SCC 531

8. Bhupendra v. State of Maharashtra, (2008) 17 SCC 165

9. Chandra Kumar Jain v. Union of India, (2015) 11 SCC 427

10. Chandrakant Baddi v. ADM & Police Commr., (2008) 17 SCC 290

11. Cherukuri Mani v. State of A.P., (2015) 13 SCC 722

12. Choith Nanikram Harchandani v. State of Maharashtra, (2015) 17 SCC

688

13. Collector and District Magistrate v. S. Sultan, (2008) 15 SCC 191

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PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 25

14. Commr. of Police v. C. Anita, (2004) 7 SCC 467

15. D. Anuradha v. Joint Secy., (2006) 5 SCC 142

16. D.M. Nagaraja v. Govt. of Karnataka, (2011) 10 SCC 215

17. Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 14

18. Deepak Verma v. Union of India, 2017 SCC OnLine Del 11321

19. District Collector v. Sk. Hasmath Beebi, (2001) 5 SCC 401

20. G. Reddeiah v. Govt. of A.P., (2012) 2 SCC 389

21. Gautam Jain v. Union of India, (2017) 3 SCC 133

22. Gimik Piotr v. State of T.N., (2010) 1 SCC 609

23. Harshala Santosh Patil v. State of Maharashtra, (2006) 12 SCC 211

24. Huidrom Konungjao Singh v. State of Manipur, (2012) 7 SCC 181

25. Ibrahim Nazeer v. State of T.N., (2006) 6 SCC 64

26. K.K. Saravana Babu v. State of T.N., (2008) 9 SCC 89

27. K.S. Nagamuthu v. State of T.N., (2006) 4 SCC 792

28. Kalyani v. State of T.N., 2016 SCC OnLine Mad 18133

29. Khaja Bilal Ahmed v. State of Telangana, (2020) 13 SCC 632 : 2019 SCC
OnLine SC 1657

30. Mukesh Tikaji Bora v. Union of India, (2007) 9 SCC 28

31. Pebam Ningol Mikoi Devi v. State of Manipur, (2010) 9 SCC 618

32. Pooja Batra v. Union of India, (2009) 5 SCC 296

33. R. Kalavathi v. State of T.N., (2006) 6 SCC 14

34. R. Keshava v. M.B. Prakash, (2001) 2 SCC 145

35. Rekha v. State of T.N., (2011) 5 SCC 244

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26 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

36. Rupesh Kantilal Savla v. State of Gujarat, (2000) 9 SCC 201

37. Senthamilselvi v. State of T.N., (2006) 5 SCC 676

38. Sheetal Manoj Gore v. State of Maharashtra, (2006) 7 SCC 560

39. Sri Anand Hanumathsa Katare v. ADM, (2006) 10 SCC 725

40. Srikant v. District Magistrate, Bijapur, (2007) 1 SCC 486

41. State of Maharashtra v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613

42. State of T.N. v. Abdullah Kadher Batcha, (2009) 1 SCC 333

43. State of T.N. v. Balasubramaniam, (2001) 3 SCC 123

44. State of T.N. v. E. Thalaimalai, (2000) 9 SCC 751

45. State of T.N. v. Kethiyan Perumal, (2004) 8 SCC 780

46. State of T.N. v. Nabila, (2015) 12 SCC 127

47. State of T.N. v. R. Sasikumar, (2008) 13 SCC 751

48. State of U.P. v. Sanjai Pratap Gupta, (2004) 8 SCC 591

49. Subramanian v. State of T.N., (2012) 4 SCC 699

50. Sunila Jain v. Union of India, (2006) 3 SCC 321

51. T.P. Moideen Koya v. Govt. of Kerala, (2004) 8 SCC 106

52. T.V. Sravanan v. State, (2006) 2 SCC 664

53. Thahira Haris v. Govt. of Karnataka, (2009) 11 SCC 438

54. Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781

55. Union of India v. Chaya Ghoshal, (2005) 10 SCC 97

56. Union of India v. Laishram Lincola Singh, (2008) 5 SCC 490

57. Union of India v. Muneesh Suneja, (2001) 3 SCC 92

58. Union of India v. Paul Manickam, (2003) 8 SCC 342

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PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 27

59. Union of India v. Ranu Bhandari, (2008) 17 SCC 348

60. Union of India v. Saleena, (2016) 3 SCC 437

61. Union of India v. Sneha Khemka, (2004) 2 SCC 570

62. Union of India v. Vidya Bagaria, (2004) 5 SCC 577

63. Union of India v. Yumnam Anand M., (2007) 10 SCC 190

64. Usha Agarwal v. Union of India, (2007) 1 SCC 295

Annexure-2: Total time taken from date of detention order or detention

(whichever is earlier) till date of final disposal by the Supreme Court

S. No. Case Name and Citation No. of days

1 Khaja Bilal Ahmed v. State of Telangana, (2020) 13 419
SCC 632 : 2019 SCC OnLine SC 1657
2 Gautam Jain v. Union of India, (2017) 3 SCC 133 1174
3 Deepak Verma v. Union of India, 2017 SCC OnLine 618
Del 11321
4 Union of India v. Saleena, (2016) 3 SCC 437 1068
5 Choith Nanikram Harchandani v. State of Maharashtra, 214
(2015) 17 SCC 688
6 State of T.N. v. Nabila, (2015) 12 SCC 127 815
7 Chandra Kumar Jain v. Union of India, (2015) 11 SCC 4261
427
8 Cherukuri Mani v. State of A.P., (2015) 13 SCC 722 215
9 Abdul Nasar Adam Ismail v. State of Maharashtra, 351
(2013) 4 SCC 435
10 Baby Devassy Chully v. Union of India, (2013) 4 SCC 2719
531
11 Huidrom Konungjao Singh v. State of Manipur, (2012) 322
7 SCC 181
12 Subramanian v. State of T.N., (2012) 4 SCC 699 215
13 Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781 252
14 D.M. Nagaraja v. Govt. of Karnataka, (2011) 10 SCC 362
215
15 G. Reddeiah v. Govt. of A.P., (2012) 2 SCC 389 301
16 Rekha v. State of T.N., (2011) 5 SCC 244 103
17 Pebam Ningol Mikoi Devi v. State of Manipur, (2010) 374
9 SCC 618

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28 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

S. No. Case Name and Citation No. of days

18 Gimik Piotr v. State of T.N., (2010) 1 SCC 609 374
19 Thahira Haris v. Govt. of Karnataka, (2009) 11 SCC 326
438
20 Pooja Batra v. Union of India, (2009) 5 SCC 296 478
21 State of T.N. v. Abdullah Kadher Batcha, (2009) 1 SCC 3381
333
22 Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 174
14
23 Union of India v. Ranu Bhandari, (2008) 17 SCC 348 1006
24 K.K. Saravana Babu v. State of T.N., (2008) 9 SCC 89 360
25 State of T.N. v. R. Sasikumar, (2008) 13 SCC 751 3288
26 Bhupendra v. State of Maharashtra, (2008) 17 SCC 165 387
27 Chandrakant Baddi v. ADM & Police Commr., (2008) 872
17 SCC 290
28 Collector and District Magistrate v. S. Sultan, (2008) 742
15 SCC 191
29 Union of India v. Laishram Lincola Singh, (2008) 5 913
SCC 490
30 State of Maharashtra v. Bhaurao Punjabrao Gawande, 585
(2008) 3 SCC 613
31 Union of India v. Yumnam Anand M., (2007) 10 SCC 586
190
32 Mukesh Tikaji Bora v. Union of India, (2007) 9 SCC 28 3149
33 Alpesh Navinchandra Shah v. State of Maharashtra, 775
(2007) 2 SCC 777
34 Srikant v. District Magistrate, Bijapur, (2007) 1 SCC 545
486
35 Harshala Santosh Patil v. State of Maharashtra, (2006) 259
12 SCC 211
36 Usha Agarwal v. Union of India, (2007) 1 SCC 295 356
37 Sri Anand Hanumathsa Katare v. ADM, (2006) 10 SCC 377
725
38 Adishwar Jain v. Union of India, (2006) 11 SCC 339 562
39 A. Geetha v. State of T.N., (2006) 7 SCC 603 348
40 Sheetal Manoj Gore v. State of Maharashtra, (2006) 206
7 SCC 560
41 Ibrahim Nazeer v. State of T.N., (2006) 6 SCC 64 293
42 R. Kalavathi v. State of T.N., (2006) 6 SCC 14 336
43 Senthamilselvi v. State of T.N., (2006) 5 SCC 676 190

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PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 29

S. No. Case Name and Citation No. of days

44 Kalyani v. State of T.N., 2016 SCC OnLine Mad 18133 190
45 D. Anuradha v. Joint Secy., (2006) 5 SCC 142 3729
46 Sunila Jain v. Union of India, (2006) 3 SCC 321 988
47 T.V. Sravanan v. State, (2006) 2 SCC 664 428
48 A. Maimoona v. State of T.N., (2006) 1 SCC 515 184
49 K.S. Nagamuthu v. State of T.N., (2006) 4 SCC 792 677
50 Union of India v. Chaya Ghoshal, (2005) 10 SCC 97 727
51 State of T.N. v. Kethiyan Perumal, (2004) 8 SCC 780 6040
52 T.P. Moideen Koya v. Govt. of Kerala, (2004) 8 SCC 983
106
53 State of U.P. v. Sanjai Pratap Gupta, (2004) 8 SCC 591 637
54 Commr. of Police v. C. Anita, (2004) 7 SCC 467 405
55 Union of India v. Vidya Bagaria, (2004) 5 SCC 577 3060
56 Union of India v. Sneha Khemka, (2004) 2 SCC 570 3076
57 A.C. Razia v. Govt. of Kerala, (2004) 2 SCC 621 567
58 Union of India v. Paul Manickam, (2003) 8 SCC 342 1265
59 District Collector v. Sk. Hasmath Beebi, (2001) 5 SCC 443
401
60 State of T.N. v. Balasubramaniam, (2001) 3 SCC 123 685
61 Union of India v. Muneesh Suneja, (2001) 3 SCC 92 966
62 R. Keshava v. M.B. Prakash, (2001) 2 SCC 145 278
63 Rupesh Kantilal Savla v. State of Gujarat, (2000) 9 63
SCC 201

Annexure-3: Time spent at the Supreme Court level till date of final disposal

S. No. Case Name and Citation No. of days

1 Khaja Bilal Ahmed v. State of Telangana, (2020) 13 183
SCC 632 : 2019 SCC OnLine SC 1657
2 Gautam Jain v. Union of India, (2017) 3 SCC 133 989
3 Deepak Verma v. Union of India, 2017 SCC OnLine Del 392
11321
4 Union of India v. Saleena, (2016) 3 SCC 437 595
5 Choith Nanikram Harchandani v. State of Maharashtra, 114
(2015) 17 SCC 688
6 State of T.N. v. Nabila, (2015) 12 SCC 127 582

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30 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

S. No. Case Name and Citation No. of days

7 Chandra Kumar Jain v. Union of India, (2015) 11 SCC 3732
427
8 Cherukuri Mani v. State of A.P., (2015) 13 SCC 722 77
9 Abdul Nasar Adam Ismail v. State of Maharashtra, 50
(2013) 4 SCC 435
10 Baby Devassy Chully v. Union of India, (2013) 4 SCC 2375
531
11 Huidrom Konungjao Singh v. State of Manipur, (2012) 65
7 SCC 181
12 Subramanian v. State of T.N., (2012) 4 SCC 699 68
13 Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781 34
14 D.M. Nagaraja v. Govt. of Karnataka, (2011) 10 SCC 137
215
15 G. Reddeiah v. Govt. of A.P., (2012) 2 SCC 389 125
16 Rekha v. State of T.N., (2011) 5 SCC 244 76
17 Pebam Ningol Mikoi Devi v. State of Manipur, (2010) 192
9 SCC 618
18 Gimik Piotr v. State of T.N., (2010) 1 SCC 609 87
19 Thahira Haris v. Govt. of Karnataka, (2009) 11 SCC 125
438
20 Pooja Batra v. Union of India, (2009) 5 SCC 296 183
21 State of T.N. v. Abdullah Kadher Batcha, (2009) 1 SCC 3038
333
22 Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 112
14
23 Union of India v. Ranu Bhandari, (2008) 17 SCC 348 699
24 K.K. Saravana Babu v. State of T.N., (2008) 9 SCC 89 88
25 State of T.N. v. R. Sasikumar, (2008) 13 SCC 751 2900
26 Bhupendra v. State of Maharashtra, (2008) 17 SCC 165 193
27 Chandrakant Baddi v. ADM & Police Commr., (2008) 377
17 SCC 290
28 Collector and District Magistrate v. S. Sultan, (2008) 453
15 SCC 191
29 Union of India v. Laishram Lincola Singh, (2008) 5 572
SCC 490
30 State of Maharashtra v. Bhaurao Punjabrao Gawande, 436
(2008) 3 SCC 613
31 Union of India v. Yumnam Anand M., (2007) 10 SCC 209
190

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PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 31

S. No. Case Name and Citation No. of days

32 Mukesh Tikaji Bora v. Union of India, (2007) 9 SCC 28 252
33 Alpesh Navinchandra Shah v. State of Maharashtra, 320
(2007) 2 SCC 777
34 Srikant v. District Magistrate, Bijapur, (2007) 1 SCC 295
486
35 Harshala Santosh Patil v. State of Maharashtra, (2006) 161
12 SCC 211
36 Usha Agarwal v. Union of India, (2007) 1 SCC 295 149
37 Sri Anand Hanumathsa Katare v. ADM, (2006) 10 SCC 157
725
38 Adishwar Jain v. Union of India, (2006) 11 SCC 339 197
39 A. Geetha v. State of T.N., (2006) 7 SCC 603 301
40 Sheetal Manoj Gore v. State of Maharashtra, (2006) 7 188
SCC 560
41 Ibrahim Nazeer v. State of T.N., (2006) 6 SCC 64 131
42 R. Kalavathi v. State of T.N., (2006) 6 SCC 14 90
43 Senthamilselvi v. State of T.N., (2006) 5 SCC 676 60
44 Kalyani v. State of T.N., 2016 SCC OnLine Mad 18133 58
45 Sunila Jain v. Union of India, (2006) 3 SCC 321 688
46 T.V. Sravanan v. State, (2006) 2 SCC 664 267
47 A. Maimoona v. State of T.N., (2006) 1 SCC 515 102
48 K.S. Nagamuthu v. State of T.N., (2006) 4 SCC 792 448
49 Union of India v. Chaya Ghoshal, (2005) 10 SCC 97 263
50 State of T.N. v. Kethiyan Perumal, (2004) 8 SCC 780 2100
51 T.P. Moideen Koya v. Govt. of Kerala, (2004) 8 SCC 269
106
52 State of U.P. v. Sanjai Pratap Gupta, (2004) 8 SCC 591 403
53 Commr. of Police v. C. Anita, (2004) 7 SCC 467 250
54 Union of India v. Vidya Bagaria, (2004) 5 SCC 577 1982
55 Union of India v. Sneha Khemka, (2004) 2 SCC 570 2664
56 A.C. Razia v. Govt. of Kerala, (2004) 2 SCC 621 374
57 Union of India v. Paul Manickam, (2003) 8 SCC 342 796
58 District Collector v. Sk. Hasmath Beebi, (2001) 5 SCC 175
401
59 State of T.N. v. Balasubramaniam, (2001) 3 SCC 123 195
60 Union of India v. Muneesh Suneja, (2001) 3 SCC 92 439
61 R. Keshava v. M.B. Prakash, (2001) 2 SCC 145 103

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32 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

S. No. Case Name and Citation No. of days

62 Rupesh Kantilal Savla v. State of Gujarat, (2000) 9 47
SCC 201
63 State of T.N. v. E. Thalaimalai, (2000) 9 SCC 751 106

Annexure-4: Time spent in detention till date of final disposal by the

Supreme Court
S. No. Case Name and Citation Total Detention
Detention while in
SC
1 Khaja Bilal Ahmed v. State of 125 0
Telangana, (2020) 13 SCC 632 : 2019
SCC OnLine SC 1657
2 Gautam Jain v. Union of India, (2017) 366 180
3 SCC 133
3 Deepak Verma v. Union of India, 2017 366 139
SCC OnLine Del 11321
4 Union of India v. Saleena, (2016) 3 241 0
SCC 437
5 Choith Nanikram Harchandani v. 214 114
State of Maharashtra, (2015) 17 SCC
688
6 State of T.N. v. Nabila, (2015) 12 SCC 223 0
127
7 Chandra Kumar Jain v. Union of 366 0
India, (2015) 11 SCC 427
8 Cherukuri Mani v. State of A.P., 215 77
(2015) 13 SCC 722
9 Abdul Nasar Adam Ismail v. State of 351 50
Maharashtra, (2013) 4 SCC 435
10 Baby Devassy Chully v. Union of 364 20
India, (2013) 4 SCC 531
11 Huidrom Konungjao Singh v. State of 322 65
Manipur, (2012) 7 SCC 181
12 Subramanian v. State of T.N., (2012) 215 68
4 SCC 699
13 Ummu Sabeena v. State of Kerala, 252 34
(2011) 10 SCC 781
14 D.M. Nagaraja v. Govt. of Karnataka, 362 137
(2011) 10 SCC 215
15 G. Reddeiah v. Govt. of A.P., (2012) 301 125
2 SCC 389

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PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 33

S. No. Case Name and Citation Total Detention

Detention while in
SC
16 Rekha v. State of T.N., (2011) 5 SCC 103 76
244
17 Pebam Ningol Mikoi Devi v. State of 361 179
Manipur, (2010) 9 SCC 618
18 Gimik Piotr v. State of T.N., (2010) 1 358 71
SCC 609
19 Thahira Haris v. Govt. of Karnataka, 326 125
(2009) 11 SCC 438
20 Pooja Batra v. Union of India, (2009) 366 70
5 SCC 296
21 State of T.N. v. Abdullah Kadher 232 0
Batcha, (2009) 1 SCC 333
22 Union of India v. Ranu Bhandari, 250 0
(2008) 17 SCC 348
23 K.K. Saravana Babu v. State of T.N., 360 88
(2008) 9 SCC 89
24 State of T.N. v. R. Sasikumar, (2008) 259 0
13 SCC 751
25 Bhupendra v. State of Maharashtra, 366 0
(2008) 17 SCC 165
26 Chandrakant Baddi v. ADM & Police 266 0
Commr., (2008) 17 SCC 290
27 Collector and District Magistrate v. 177 0
S. Sultan, (2008) 15 SCC 191
28 Union of India v. Laishram Lincola 194 0
Singh, (2008) 5 SCC 490
29 Union of India v. Yumnam Anand M., 214 0
(2007) 10 SCC 190
30 Mukesh Tikaji Bora v. Union of India, 366 0
(2007) 9 SCC 28
31 Alpesh Navinchandra Shah v. State of 366 0
Maharashtra, (2007) 2 SCC 777
32 Srikant v. District Magistrate, 366 115
Bijapur, (2007) 1 SCC 486
33 Harshala Santosh Patil v. State of 259 161
Maharashtra, (2006) 12 SCC 211
34 Usha Agarwal v. Union of India, 356 149
(2007) 1 SCC 295

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34 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

S. No. Case Name and Citation Total Detention

Detention while in
SC
35 Sri Anand Hanumathsa Katare v. 377 145
ADM, (2006) 10 SCC 725
36 Adishwar Jain v. Union of India, 366 42
(2006) 11 SCC 339
37 A. Geetha v. State of T.N., (2006) 7 348 301
SCC 603
38 Sheetal Manoj Gore v. State of 206 188
Maharashtra, (2006) 7 SCC 560
39 Ibrahim Nazeer v. State of T.N., 293 131
(2006) 6 SCC 64
40 R. Kalavathi v. State of T.N., (2006) 336 90
6 SCC 14
41 Senthamilselvi v. State of T.N., (2006) 190 60
5 SCC 676
42 Kalyani v. State of T.N., 2016 SCC 190 58
OnLine Mad 18133
43 D. Anuradha v. Joint Secy., (2006) 5 366 ?
SCC 142
44 Sunila Jain v. Union of India, (2006) 988 65
3 SCC 321
45 T.V. Sravanan v. State, (2006) 2 SCC 363 202
664
46 A. Maimoona v. State of T.N., (2006) 184 102
1 SCC 515
47 K.S. Nagamuthu v. State of T.N., 677 136
(2006) 4 SCC 792
48 Union of India v. Chaya Ghoshal, 248 0
(2005) 10 SCC 97
49 State of T.N. v. Kethiyan Perumal, 3846 0
(2004) 8 SCC 780
50 T.P. Moideen Koya v. Govt. of Kerala, 983 0
(2004) 8 SCC 106
51 State of U.P. v. Sanjai Pratap Gupta, 144 0
(2004) 8 SCC 591
52 Commr. of Police v. C. Anita, (2004) 58 0
7 SCC 467
53 Union of India v. Sneha Khemka, 119 0
(2004) 2 SCC 570

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PREVENTIVE DETENTION, HABEAS CORPUS AND DELAY AT THE APEX COURT 35

S. No. Case Name and Citation Total Detention

Detention while in
SC
54 A.C. Razia v. Govt. of Kerala, (2004) 567 172
2 SCC 621
55 Union of India v. Paul Manickam, 469 0
(2003) 8 SCC 342
56 District Collector v. Sk. Hasmath 366 98
Beebi, (2001) 5 SCC 401
57 State of T.N. v. Balasubramaniam, 338 0
(2001) 3 SCC 123
58 R. Keshava v. M.B. Prakash, (2001) 2 278 103
SCC 145
59 Rupesh Kantilal Savla v. State of 63 47
Gujarat, (2000) 9 SCC 201

Annexure-5: Cases in which Supreme Court was the relief-granting court

S. Case Name Time Total Detention

No. Spent at Detention while at
SC level SC
1 Khaja Bilal Ahmed v. 183 125 0
State of Telangana (2020)
13 SCC 632 : 2019 SCC
OnLine SC 1657
2 Cherukuri Mani v. State of 77 215 77
A.P., (2015) 13 SCC 722
3 Abdul Nasar Adam Ismail 50 351 50
v. State of Maharashtra,
(2013) 4 SCC 435
4 Huidrom Konungjao Singh 65 322 65
v. State of Manipur, (2012)
7 SCC 181
5 Ummu Sabeena v. State of 34 252 34
Kerala, (2011) 10 SCC 781
6 Rekha v. State of T.N., 76 103 76
(2011) 5 SCC 244
7 Pebam Ningol Mikoi Devi 192 361 179
v. State of Manipur, (2010)
9 SCC 618
8 Gimik Piotr v. State of T.N., 87 358 71
(2010) 1 SCC 609

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36 NUJS LAW REVIEW 13 NUJS L. R ev. 2 (2020)

S. Case Name Time Total Detention

No. Spent at Detention while at
SC level SC
9 Thahira Haris v. Govt. of 125 326 125
Karnataka, (2009) 11 SCC
438
10 Pooja Batra v. Union of 183 366 70
India, (2009) 5 SCC 296
11 Deepak Bajaj v. State of 112 0 (Pre- 0
Maharashtra, (2008) 16 Execution)
SCC 14
12 K.K. Saravana Babu v. 88 360 88
State of T.N., (2008) 9 SCC
89
13 Chandrakant Baddi v. 377 266 0
ADM & Police Commr.,
(2008) 17 SCC 290
14 Alpesh Navinchandra Shah 320 366 0
v. State of Maharashtra,
(2007) 2 SCC 777
15 Harshala Santosh Patil 161 259 161
v. State of Maharashtra,
(2006) 12 SCC 211
16 Adishwar Jain v. Union of 197 407 42
India, (2006) 11 SCC 339
17 R. Kalavathi v. State of 90 336 90
T.N., (2006) 6 SCC 14
18 T.V. Sravanan v. State, 267 363 202
(2006) 2 SCC 664
19 K.S. Nagamuthu v. State of 448 366 136
T.N., (2006) 4 SCC 792
20 Rupesh Kantilal Savla v. 47 63 47
State of Gujarat, (2000) 9
SCC 201

April - June, 2020