The Supreme Court in Durga Pada Ghosh v. State of West Bengal reported in (1972) 2 SCC 656 whilst dealing with a writ in the nature of habeas corpus was called upon to examine the meaning and import of the expression “as soon as may be” appearing in Article 22(5) of the Constitution and its significance in communication of the grounds of detention and disposal of the representation of the detenu. In the said case, the detenu came to be arrested and put in preventive detention in December, 1971. The detenu moved a representation which was received in early January, 1972. However, his representation came to be considered by the State government therein only in February, 1972 and his detention was confirmed and communicated in March, 1972. The detenu challenged the order of preventive detention passed against him on the ground that there was an inordinate delay of almost two months on part of the State government in considering his representation even though the same had been received in January itself.
The Court held that the aforesaid expression must be seen in the context of the scheme underlying Article 22, more particularly, the importance that it occupies in the constitutional set-up as regards the personal freedom of an individual and in a manner whereby the provision does not lose both its purpose and meaning. The words “as soon as may be” in such context implies anxious care on the part of the authority concerned to perform its duty in this respect, as early as practicable, without avoidable delay. The course of action which is expected from the concerned authority; being communication of the grounds of arrest and disposal of the representation, was required to be considered with a sense of urgency and must be done with due promptitude or expedition and with reasonable dispatch.
It was further held that although there is no definite time-limit which can be laid down within which such actions must be done, yet at the same time, whether the appropriate authority had disposed of its obligation as expeditiously as possible ought to be looked into keeping in mind the peculiar facts and circumstances of each case. It further held that such constitutional obligations cannot be ignored or justified on reasons of administrative delay except where it is shown that ample arrangements were made to cope with the situation that led to a delay and a certain degree of priority was accorded. The relevant observations read as under:
“7. Now it is not disputed before us that on the question of delay in considering the representation by the State Government no hard and fast rule can be laid down and it is a matter which falls for decision on the facts and circumstances of each case. It may in this connection be pointed out that in Jayanarayan case the writ petition was referred to a Bench of five Judges to consider as to what would be the question of period within which the State Government could dispose of the representation of the detenu because it was felt that there was an apparent conflict between Shyamal Chakraborty v. Commissioner of Police, Calcutta and Khairul Haque v. State of West Bengal. After considering the various decisions on the point the Court expressly concluded thus:
“No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in words of Shelat, J., who spoke for the Court in the case of Khairul Haque : ‘it is obvious that the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning’.”
8. The scheme underlying Article 22 of the Constitution highlights the importance attached in our constitutional set-up to the personal freedom of an individual. Sub-articles (1) and (2) refer to the protection against arrest and detention of a person under the ordinary law. Persons arrested or detained under a law providing for preventive detention are dealt with in sub-articles (4) to (7). Sub-article (5) says that when a person is detained in pursuance of an order under a law providing for preventive detention the grounds on which the order is made have to be communicated to the person concerned as soon as may be and he has to be afforded earliest opportunity to represent against the order.
The object of communicating the grounds is to enable the detenu to make his representation against the order. The words “as soon as may be” in the context must imply anxious care on the part of the authority concerned to perform its duty in this respect as early as practicable without avoidable delay. Similarly, when the representation is made it is in the fitness of things that the said representation should be considered with the same sense of urgency with which the grounds are intended to be communicated to the detenu. That is the only way in which the purpose, for which the earliest communication of the grounds to the person concerned is provided, can be achieved.
The representation must, therefore, be considered with due promptitude or expedition and without avoidable delay, in other words with reasonable dispatch. As held by the Court in Jayanarayan case, the representation should be considered as expeditiously as possible. As the question of delay in considering the representation falls for determination on the facts and circumstances of each case the binding force of a past precedent for a later case would largely depend on the degree of close similarity of the circumstances dealt with therein. […]”