Symbiosis Law School, NOIDA

Submission of ICE MODE 1: PROJECT for ‘Constitutional Law’

Submitted by:

Shivansh Saluja

PRN: 22010224158

PROGRAM: B.B.A.LL.B.

DIVISION: C

SEMESTER: III

YEAR: 2nd YEAR

BATCH: 2022-2027

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

BALCHAND CHORARIA Vs UNION OF INDIA AIR 1978 SC 297

Submitted to:

Ms. Sakshi Tiwari

Assistant Professor

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

(July-August 2023)
 Index

S.NO. PARTICULARS PAGE NO.

1 INTRODUCTION 3

2 ISSUE 3

3 RULE 3

4 ANALYSIS 3-4-5-6

5 CONCLUSION 6-7

6 COMMENTS 7
 Case analysis

Introduction

CASE NAME- Balchand Choraria

Versus

Union Of India (UOI) And Ors.

Date- 13 December, 1977

Citation- AIR 1978 SC 297

Bench-J Singh, S M Ali

Issue- 1. Whether under COFEPOSA a representation made as Member of

Parliament as a counsel for detenue was proper according to Article 22(5)
of the Constitution of India?

2. Whether such representation was required as by the Government’s

consideration?

3. Whether such non-consideration violated the right to personal liberty

under article 21?

Rule- 1. Article-21 of the Constitution of India

2. Article- 22(5) of the Constitution of India

Analysis-
With respect to the first issue, Article 22(5) of the Indian Constitution,
states that “When any person is detained in pursuance of an order made
under any law providing for preventive detention, the authority making the
order shall, as soon as may be, communicate to such person the grounds on
which the order has been made and shall afford him the earliest
opportunity of making a representation against the order” 1

Therefore, in the above case the question before the court of law was that,
whether such representation when made by the Member of Parliament, also
being the learned counsel for detenue comes under the article 22(5) of the
Constitution of India. The question raised some serious aspects like,
whether such representation was even proper since it was made by the
counsel and not the detenue, the counsel also being the MP, thereby
interfering in executive functioning being from the background of
legislature, thereby violating the separation of powers, also whether it was
according to the rules made by the COFEPOSA, the clause of which
required the authorized signature of detenue only or the agent.

According to the Supreme Court laid that Mr. Ram Jethmalani already
submitted in the court of law that he was acting on the steps of his client,
detenue, also which shows that he was acting as his agent, thereby fulfilling
the condition that the clause required the authorized signature of detenue
himself or his agent, though the court interpreted that the rules made by
the COFEPOSA were directory and not compulsory, also the opposite party
failed to show any evidence that the counsel used his legislative powers to
interfere, thereby striking down the questioning of failure of doctrine of
separation of powers. In spite, of the arguments regarding the violation of
doctrine of separation of power the court reasoned that article 19(1) (g) be
read in addition to article 22(5) that if being Member of Parliament and
thereby cannot act as counsel it would be then violative of a person’s right
to practice his profession.

With the respect to the second issue, regarding the application of

article 22(5), a person who is detained, the authority has to make an order

1
and communicate to the person concerned about the grounds of the same
and giving a chance to him to represent against the same.

In the above case the question arises that whether the Government gave a
chance to the detenue to represent himself, also whether they
communicated the same, the application submitted by the government,
claims that they considered the same but was rejected on merits. Also the
communication was done by the letter regarding the same.

The supreme court held rejecting the claims that the letter so submitted
was only receipt of acknowledging the representation that the detenue has
represented himself but not that they communicated their decision, thereby
the government failed in considering the representation made by the
detenue and thus failed in discharging its duty which it was bound by the
article 22(5) of The Constitution Of India. The court cited its judgment in
Smt. Shalini Soni Vs Union Of India, where it laid down that Article
22(5) made the government duty bound to let the detenue represent
himself and the same be considered by the authorities in a reasonable time,
thereby invoking the doctrine of procedural due process.

With respect to the third issue, it is to be determined whether the non-

consideration of the representation is violative of the article 21 of the
Constitution of India.

Article 21 of the Constitution of India states that, “no person shall be

deprived of his life or personal liberty except to the procedure established
by law.”2

In the above case it is to be determined whether the Government’s non

consideration was deprivation of his personal liberty. The court held that
article 21 doesn’t not only gives right to personal liberty but also right to
fair and just procedure. It was held that article 22(5) was an integral part of
procedure under article 21 and conferred a right on detenue to have his
representation but the government failed to consider the same within a
reasonable time, therefore held that it violated the right to personal liberty.
The court relied on Maneka Gandhi Vs Union of India Procedures

2
created  by  legislation  should  adhere  to the  principles  of  natural 
justice and human rights rather than being arbitrary, unreasonable, or unfa
ir. The court likewise alluded in Khudiram Das Vs State of West Bengal,
wherein it was held that Article 22(5) was a shield against the detention it
forced an obligation on the government to speedily consider the
representation thus made by the detenue. The court likewise conjured the
principle of considerable fair treatment and held that Article 21 expected
not only the law but the substance of the law ought to be fair, just and
reasonable.

CONCLUSION-

The Supreme Court decided all the contentions raised in favor of the
appellant or detenue and also laid down that the detention was not legal
and also unconstitutional, the act of the government was indeed wrong and
such a representation made by Mr. Ram Jethmalani was perfectly fine and
legal since he was acting on behalf of his client, the detenue and the court
observed that the Article 22(5) does not prescribe anything about the
manner of an ideal representation and the letter of grievance made by the
detenue is enough in this particular case of the detenue against the order.
The court also noted the matter of fact that there was no evidence which
showed the position of MP was used in this case, and it was merely an
allegation, also the fact that he was following the advisory given by his
client was also mentioned in the court by the counsel. The court also noted
that the government didn’t obey the rules and regulations, which it was
duty bound to do under the article 22(5). The court additionally noted that
there was no proof to show that the portrayal was put before any authority
which is competent for that matter. The court found that the authority had
rejected to release and basically failed to discharge the obligation and
deciding the representation made by the detenue within a reasonable and
probable time. Moreover, the court held that non consideration of the
representation violated the right to personal liberty under Article 21.
The case highlights the importance of right to personal liberty under article
21 of the constitution, emphasizes the need for a fair and speedy
consideration for representations made by detenue against the order under
article 22(5) of the Constitution.

COMMENTS

The Supreme Court’s judgment in this case is commendable for several

reasons. First, the Supreme Court recognized and respected the right of
detenue to choose his representative and to pick his own direction,
regardless of whether he was an Individual from Parliament, and forced no
pointless limitations or conventions on his portrayal.

The Court valued the way that Mr. Ram Jethmalani, who was going about
as the advice for the detenue, was a famous legal counselor and
parliamentarian, who had followed up on directions from his client and had
not, utilized his situation to impact or disrupt the chief capability. The
Court likewise held that the guidelines outlined under the COFEPOSA were
not obligatory, yet just registry, and any deviation from them didn't nullify
the portrayal. The Court subsequently embraced a commonsense and
adaptable methodology in managing the portrayal made by the detenue,
and permitted no details or procedural defects.

Second, the Court guaranteed that the portrayal made by the detenue was
thought of and chosen by the Public authority inside a sensible time, as
expected by Article 22(5) of the Constitution.

The Court dismissed the Public authority's case that it had thought of and
dismissed the portrayal on benefits, and observed that there was no proof
to show that the portrayal was set before any skilled expert for thought or
choice. The Court likewise saw that the letter dated 9th November, 1976 was
not a correspondence of the choice of the Public authority, however only an
affirmation of the receipt of the portrayal. The Court held that the Public
authority had neglected to release its sacred commitment of considering
and choosing the portrayal made by the detenue inside a sensible time, and
had in this way disregarded his entitlement to fair and only technique
under Article 21 of the Constitution. The Court subsequently authorized the
established obligation of the Government to act in a brief and constant way
in issues where the freedom of the subject is concerned and a profoundly
valued right is involved.

• Third, the Court proclaimed that the non-thought of the portrayal vitiated
the request for confinement and abused the right to individual freedom
under Article 21 of the Constitution. The Court saw that Article 21 ensured
not just a right to life and individual freedom, yet in addition an option to
right to fair and only system for denying an individual of his life or
individual freedom. The Court likewise noticed that Article 22(5) was a
basic piece of the technique laid out by regulation under Article 21 and it
gave an established right on the detenue to have his portrayal thought
about by the Public authority.

The Court found that as the Public authority had neglected to consider and
choose the portrayal inside a sensible time, it had denied the detenue his
entitlement to fair and just technique and in this manner disregarded his
right to individual freedom. The Court hence maintained the sacredness of
Article 21 as quite possibly of the most key right ensured by the
Constitution, and struck down any regulation or activity that encroached
upon it.