Three representations went unanswered until the Advisory Board had reported, and that alone made the detention bad in law

Justices Anil K. Narendran and Muralee Krishna S. set aside a KAAPA detention, holding the Government acts in a dual capacity and must consider a representation independently without waiting for the Board.

A man was detained in the Central Prison at Viyyur by an order of 14 May 2026 passed by the District Collector and District Magistrate, Palakkad, under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act. His wife brought a writ petition under Article 226 challenging both that order and the Government order of 24 July 2026 confirming the detention for six months. On 9 October 2026 a Division Bench of the Kerala High Court set both aside and directed his release.

Three representations, and when they were looked at

The detenu made three representations. The first, dated 29 May 2026, went to the Government. Two more, both dated 18 June 2026, went to the Government and to the Chairman of the Advisory Board respectively.

None of them was considered separately. They were taken up only after the Advisory Board had forwarded its recommendation, and were dealt with, if at all, in the confirmation order of 24 July 2026 rather than by any independent decision.

The constitutional point

The principle the Court drew from the authorities is that a detenu has the right to submit separate representations to the Advisory Board and to the Government, as Section 7(2) of the Act permits, and that the Government is duty-bound to consider the representations submitted to it independently.

The reason is the Government's position in the scheme. It acts in a dual capacity so far as an order of preventive detention is concerned: it is the authority that confirms the detention on the Board's opinion, and it is separately the authority to which the detenu may appeal for release. When a representation is received from the detenu, independent consideration of it by the Government is mandated by law. There is no necessity for the Government to wait for the opinion of the Advisory Board before considering a representation submitted to it.

Unexplained delay in considering a representation violates the constitutional safeguard guaranteed by Article 22(5), and makes further detention bad in the eyes of law. The authority the Court relied on puts it bluntly: a detention order cannot be sustained in the absence of any explanation by the State for not considering a representation made simultaneously but considered only after the Advisory Board forwarded its recommendation; in such a case it is quite evident that the Government was awaiting the report of the Advisory Board.

That is what the Court found had happened here. The three representations were not considered independently, either in the confirmation order or by a separate order, and for that reason the statutory and constitutional safeguard guaranteed to the detenu was violated.

The argument that did not succeed

The petitioner also argued that the maximum period of detention — six months — had been ordered without stating reasons, relying on an earlier decision of the Court.

The Bench rejected that. From the confirmation order it noticed that the period was fixed after considering the original detention order, all the relevant documents placed before the Government, and the opinion of the Advisory Board. It therefore could not be said that the six-month period was fixed without application of mind, and no merit was found in the argument.

The distinction is worth drawing out, because the two grounds pull in opposite directions on the same document. The confirmation order was adequate as a reasoned fixation of the period of detention. It was not adequate as a disposal of representations which the law required to be considered separately and earlier. The first is a question of whether the Government applied its mind to the material it had; the second is about whether it applied its mind at the right time, to material the detenu had put before it independently of the Board.

The order

The upshot, the Court held, was that the detention order of 14 May 2026 and the confirmation order of 24 July 2026 were liable to be set aside, and it set them aside.

Consequently the Superintendent of Jail, Central Jail, Viyyur, was directed to release the detenu forthwith, if his detention is not necessary in any other case — the usual qualification, which leaves intact any separate custody he may be in. The Registry was directed to communicate the order to the Superintendent forthwith by email, a direction that matters in a preventive detention case where the remedy is only worth what its speed of delivery makes it.

Mr M.H. Hanis led for the petitioner with five other advocates; Adv. Reeha Khader K., Senior Government Pleader, appeared for the State, the District Collector, the District Police Chief, the Chairman of the Advisory Board and the Superintendent of Jail. The petition was finally heard on 30 September 2026.