Indian Supreme Court Considers Right to Liberty and Safeguards against Arbitrary Detention

Pebam Ningol Mikoi Devi v State of Manipur & Ors [2010] INSC 782 (27 September 2010)

The Indian Supreme Court has consider the right to liberty and safeguards against arbitrary detention, including the need for sufficient justification for any deprivation of liberty and the availability of expeditious, substantive review of the lawfulness of any such detention.


Ranjit Oinamcha was the editor of a Manipur daily newspaper.  He was arrested on 18 September 2009 and charged with engaging in anti-national activities.  He was placed under preventive detention pursuant to the National Security Act by order passed by the Imphal West District Magistrate.

The order’s grounds for detention stated that Mr Oinamcha collaborated with Irom Priyobarta Singh of the United National Liberation Front (UNLF) to extort money from government contractors with demand letters printed on Mr Oinamcha’s press.  The grounds for detention also stated that the extortion resulted in a wave of terror in the general public which prejudiced the maintenance of public order.  It noted that the UNLF is an unlawful association fighting for Manipur independence from India.  Additionally, it stated that police arrested Mr Oinamcha on 17 September 2009.

Mr Oinamcha made a representation in response to the order.  In it he stated that on17 September 2009 Mr Singh brought a sum of money, which he claimed was earned from contract work, to Mr Oinamcha’s residence for safe keeping.  Mr Oinamcha stated he believed Mr. Singh’s story and kept the money.  That night police, along with Mr. Singh, came to his house and asked him to hand over the money, which he did.  On 18 September 2009, he was told to report that day to law enforcement, who interrogated him regarding the money and forced him to sign a back dated seizure memo and a back dated arrest memo.  The same day, he was detained at the police station and was told he had been made a co-accused with Mr. Singh and charged with a violation of the Unlawful Activities (Prevention) Act.  He denied all allegations in the grounds for detention.  He claimed that he was not involved with the UNLF, that he started the press only in 2006 and could not have been involved in printing demand letters since 2003, that he did not even know Mr Singh, that the arrest and seizure were not done on 17 September but on 18 September, and that he had not committed any acts that disturbed the maintenance of public order or prejudiced the security of the State.

Mr Oinamcha’s representation was filed on 9 October 2009.  However, it was not forwarded to the central government until 16 October 2009 and was not received until 28 October 2009.

Mr Oinamcha’s wife filed a petition on his behalf questioning the sufficiency of the detention order.  The Guwahati High Court dismissed the petition, and the wife appealed to the Indian Supreme Court.


Violation of constitutional right to personal liberty

After emphasizing that ‘[i]n India, the utmost importance is given to life and personal liberty of an individual, since we believe personal liberty is the paramount essential to human dignity and happiness,’ the Indian Supreme Court found that Mr Oinamcha’s detention violated his Constitutional right to liberty.

Article 21 of the Indian Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law.

Article 22 provides additional procedural safeguards in the case of preventive detention where a person has been detained without trial.  Article 22(5) guarantees to detainees the right (1) to be informed as soon as possible of the grounds on which his detention is based and (2) to be afforded the earliest opportunity to make a representation against the detention.

Whether grounds for detention are sufficient is a matter for the subjective satisfaction of the detaining authority.  A court normally will not inquire into the correctness of the decision but may examine the decision-making process.  The court may find the order invalid if one of the grounds which lead to the subjective satisfaction of the detaining authority is nonexistent, misconceived, or irrelevant.  The Court held that inclusion of an irrelevant or nonexistent ground in the order of detention is an infringement of the first right guaranteed by art 22(5), and the inclusion of an obscure or vague ground is an infringement of the second.

The Court found that the documents relied on by the order of detention did not provide any reasonable basis for passing the detention order.  The grounds were based primarily on Mr Oinamcha’s own statements to an investigating officer.  Such statements could not be relied on to sustain an order of detention in the absence of any supporting or corroborating evidence.  The Code of Criminal Procedure dictates that such statements are not substantive evidence and can only be used for the limited purpose of witness impeachment at trial.  No other documents substantiated Mr Oinamcha’s involvement in the alleged unlawful activities.

The National Security Act confers to the central government the power to revoke an order of detention.  The Court found that for this power to be real and effective, a detainee must have a right to make a representation to the government against the order of detention.  Thus, the failure of the state government to comply with the onward transmission of his representation to the central government deprived Mr Oinamcha of his right to have his detention revoked.

The Court further held that the seven day delay in forwarding Mr Oinamcha’s representation violated art 22(5) of the Indian Constitution.  Article 22(5) mandates that a detainee be afforded the earliest possible opportunity to make a representation against a preventative detention order.  What constitutes a reasonable time is a case-specific inquiry, but courts should ensure against remissness, indifference, or avoidable delay.  The Court stated that a delay of seven days may not be inordinate, but the state had offered no explanation for it.

Relevance to the Victorian Charter

Section 21 of the Charter protects the right to liberty and security of person.  The section prohibits arbitrary arrest or detention and requires that a person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.  A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.  Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention.  The court must make a decision without delay and order the release of the person if it finds that the detention is unlawful.

The decision is at

Kathryn Reed is an LLM candidate at Melbourne Law School and a volunteer with the Human Rights Law Resource Centre