Detention Illegal If Authority Fails to Inform Detenu of Right to Make Representation: Supreme Court
NEW DELHI : The Supreme Court has held that failure of a detaining authority to inform a person detained under preventive detention law of his right to make a representation before the authority itself is a violation of Article 22(5) of the Constitution and renders the continued detention illegal.
A Bench of Justices Vikram Nath and Sandeep Mehta delivered the ruling on July 28, 2026, in Alfiya A. v. State of Kerala, allowing an appeal filed by the wife of detenu Muhammed Rafi. The Court quashed his detention order and directed that he be released forthwith, unless required in any other case.
Rafi had been detained under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). His detention order was issued on January 13, 2026, executed on February 5, and subsequently confirmed by the Kerala Government for one year.
The case arose after Rafi was booked in two narcotics cases. In the first case registered in May 2024, he was arrested and later released on bail. A second case was registered in August 2025 under the Narcotic Drugs and Psychotropic Substances Act, following which he was arrested. He was subsequently granted bail in October 2025.
Meanwhile, proceedings under the Bharatiya Nagarik Suraksha Sanhita were initiated and authorities proposed his preventive detention under the PITNDPS Act. The detention order was eventually passed in January 2026.
After being taken into custody, Rafi was supplied the grounds of detention. On February 13, he submitted two representations—one to the Advisory Board and another to the Detaining Authority.
The Supreme Court, however, found a fundamental defect in the detention process. Although Rafi had been informed that he could make representations to the State Government, Advisory Board and Central Government, he was not specifically informed that he could also make a representation to the officer who had passed the detention order and who possessed the statutory power to revoke it.
The Court held that this omission could not be cured merely because Rafi had independently submitted a representation to the Detaining Authority.
“The obligation was upon the authority to communicate the right,” the Court held, making it clear that the constitutional safeguard cannot depend upon whether a detainee somehow discovers the right himself.
The Bench stressed that preventive detention involves deprivation of liberty without a criminal trial and therefore constitutional safeguards must be enforced strictly. Article 22(5) requires the grounds of detention to be communicated to the detainee and mandates that he be afforded the earliest opportunity to make a representation against the detention.
According to the Court, the right to make a representation necessarily includes the right to know the authority or authorities to whom such representation can be made.
The Supreme Court also found that the representation submitted to the Detaining Authority was not independently and expeditiously considered. The case was referred to the Advisory Board on February 16, while the Board submitted its report on March 13. The Government confirmed the detention on March 19 and the rejection of the representation was communicated to Rafi on March 27.
The Court noted that 34 days had elapsed before the representation was considered and another eight days before the decision was communicated. No satisfactory day-to-day explanation was provided for the delay.
It further clarified that consideration of a representation by the Detaining Authority and the Advisory Board's examination are two separate constitutional processes. The Advisory Board's opinion cannot substitute the independent consideration required from an authority empowered to revoke the detention.
Relying on earlier Constitution Bench and Supreme Court decisions, including Kamleshkumar Ishwardas Patel v. Union of India, Gracy v. State of Kerala and K.M. Abdulla Kunhi v. Union of India, the Bench held that the safeguards under Article 22(5) were violated.
The Court said the defects were not mere technical or procedural irregularities but went to the heart of a constitutional protection available to a person detained without trial.
Consequently, the Supreme Court set aside the Kerala High Court's April 8, 2026 judgment, quashed both the January 13 detention order and March 19 confirmation order, and ordered Rafi's release.
The ruling reinforces that preventive detention, despite being constitutionally permissible in specified circumstances, cannot be sustained unless authorities strictly comply with safeguards protecting personal liberty. Failure to inform a detenu of his right to represent before the competent detaining authority can therefore prove fatal to the detention itself.
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