COFEPOSA: THE ADVISORY BOARD OPINIONS CANNOT BE A SUBJECT MATTER OF JUDICIAL REVIEW, REITERATES SC

INTRODUCTION:

The Hon’ble Supreme Court of India reiterates that the opinion of Advisory Board given by the pursuant made under the reference of Section 8(b) of the COFEPOSA cannot be made as a subject matter of review or scrutiny by the judicial courts or tribunals.

The Bench comprising of Justice Uday Umesh Lalit and Justice R Subhash Reddy dismissing a special leave petition which was filed by the Union of India (UOI) against the opinion of the Advisory Board which was constituted under the Section 8(a) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974.

UNION OF INDIA V. NISAR PALLA THYKADAVIL ALIYAR:

In the above mentioned case, the Advisory Board had opined that there may be no sufficient cause happened for the continued detention of the above named detune under Section 3 of the COFEPOSA.

The Court of Law rejected that the contention made by the Additional Solicitor General that, if the opinion of the Advisory Board were to be made in effect then there will be no sufficient cause for the detention of the person concerned and the challenge is still available to the appropriate government and the capacity of the Advisory Board while rendering the opinion would be that of a Tribunal and therefore the opinion could be a subject matter of a challenge.

PRONOUNCEMENTS MADE WITH REFERENCE TO THE SUBJECT:

The decisions made according to the nature of the opinion which was given by the Advisory Board will neither be judicial or quasi judicial; that it would be more erroneous and unsafe to treat the opinion expressed by the board as a matter, amounting to a judgment of a criminal court; that the Advisory Board doesn’t try to question about the propriety or validity of the citizen’s detention as a court of law which would but, its function being limited.

Stating the views in Akshoy Kona, the opinion is merely intended to assist the government and thus, it is binding on the appropriate government only. If it favours the detenu and not when it is against him. Laying down the decision on the opinion of Advisory Board cannot be a subject matter of review or scrutiny by the judicial courts or Tribunals. The elements of confidentiality was also taken note of it and it is to be observed that the Advisory Board opinion is never to be intended to an open challenge before any tribunal.

The report of the Advisory Board, accepting its own opinion made strictly confidential and the nature of the power as to be given in its report and had already been pronounced upon by this court in the cases referred to above such as Dharam Singh Rathi, Akshoy Konai, A.K.Roy and Calcutta Dock Labour Board.

CONCLUSION:

The Bench further added, wherever a body is exercising judicial/quasi judicial power and a tribunal within the meaning of the expressions under Article 136 and 227 of the Indian Constitution, the decisions are amenable to the challenge but, the basic issue in the current scenario is the nature of power exercised by the Advisory Board when an opinion is made by pursuant to a reference under the Section 8(b) of the COFEPOSA Act.

-Vijayalakshmi Raju

Student Reporter, INBA.