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2021 DIGILAW 551 (AP)

Bodde Lakshmi Devi v. State of Andhra Pradesh

2021-08-16

JOYMALYA BAGCHI, K.SURESH REDDY

body2021
JUDGMENT (Per Hon’ble Sri Justice Joymalya Bagchi) All these matters give rise to a common question of law, namely, whether the representation of the detenues considered by the Advisory Board comprising of a Chairman and a Single Member would amount to valid consideration of their representation by an Advisory Board constituted under Section 9 of the Andhra Pradesh Prevention of Dangerous Activities of Boot- Leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986 (hereinafter referred to as ‘the Act 1 of 1986). 2. Shorn of details, factual matrix giving rise to the aforesaid issue is as follows: In W.P.No.9945 of 2021, the 2nd respondent detaining authority passed a detention order on 08.03.2021 under Section 3(1) read with 3(2) of the Act 1 of 1986. The order was placed before the Advisory Board comprising of Chairman (Retired) Justice Neelam Sanjeeva Reddy, and one Member for submitting its report under Section 11(1) of the Act 1 of 1986. The Advisory Board reviewed the case through video conference on 22.04.2021 and submitted its report that there was of the unanimous opinion there is sufficient cause of detention. Upon consideration of the report of the Advisory Board and the materials available, the Government in exercise of powers under Section 12(1) of the Act 1 of 1986 confirmed the detention order passed by the 2nd respondent. In W.P.No.10979 of 2021, the detenue had been detained pursuant to a detention order dated 08.03.2021 under Section 3(1) read with 3(2) of the Act 1 of 1986. Such detention order was also confirmed by the Government under Section 12(1) of the Act 1 of 1986 upon consideration of the report of the Advisory Board comprising of the Chairman and one Member only, as aforesaid. Similarly, in W.P.No.10984 of 2021 the detenu had been detained pursuant to detention order dated 15.03.2021 which came to be confirmed on 07.05.2021 upon consideration of report by the Advisory Board comprising of Chairman and Member. 3. Although the aforesaid detention orders have been challenged on various grounds, at the time of hearing, Sri S.Dilip Jaya Ram, learned counsel for the petitioners, essentially based his challenge to the detention orders on the following ground: “It is submitted that the Detention Order is confirmed by the State Government basing on the opinion of the Advisory Board. 3. Although the aforesaid detention orders have been challenged on various grounds, at the time of hearing, Sri S.Dilip Jaya Ram, learned counsel for the petitioners, essentially based his challenge to the detention orders on the following ground: “It is submitted that the Detention Order is confirmed by the State Government basing on the opinion of the Advisory Board. It is submitted that the constitution of advisory board is dealt under Section 9 of the Act 1 of 1986 1 of 1986, where Section 9(2) specifically mandates the constitution of board with specific strength i.e., a Chairman and two other members, who are, or have been Judges or are qualified to be appointed as Judges of a High Court. But in the case on hand the constituted advisory board consists of only one member, which clearly violates provisions of statue and as such the opinion rendered by the body constituted in contra to the section 9 is invalid, there by the order of detention deemed to be invalid.” In the counter filed on behalf of the State, the aforesaid ground has been dealt with as follows: “15. In reply to para-5 ground No.(xii) & (xiii), the detenue was produced before the Advisory Board on 22.4.2021 by way of Zoom App by the Jail authorities and given opportunity to the detenue as well as the father of detenue who attended in office of the Circle Inspector of Police, Vontimitta to represent the case before the Advisory Board. The Advisory Board after perusing the record and hearing the contentions of the detenue through video conference, formed an opinion that the order of detention is to be confirmed basing on the available material on record. Therefore, the order of detention was confirmed by the Advisory Board.” 4. Hence, there is no rebuttal on behalf of the State to the plea raised by the detenu that the Advisory Board comprised of the Chairman and one Member only and therefore, could not be treated as having been validly constituted under Section 9 of the Act 1 of 1986. 5. Sri Jaya Ram, learned counsel for the petitioners, argues that the Advisory Board was not constituted as per Section 9 of the Act 1 of 1986. Section 9 of the Act 1 of 1986 categorically provides that the Board must comprise of Chairman and two Members. 5. Sri Jaya Ram, learned counsel for the petitioners, argues that the Advisory Board was not constituted as per Section 9 of the Act 1 of 1986. Section 9 of the Act 1 of 1986 categorically provides that the Board must comprise of Chairman and two Members. Admittedly, in the present cases, the Board comprising of Chairman and one Member only reviewed the detention orders which came to be confirmed by the Government on the basis of their report. 6. Duty of the Advisory Board is to independently review the detention order passed by the Government after considering the materials on record including representation, if any, by the detenu. Such review is to be undertaken by a Board comprising of Chairman and two Members, who are, or have been, or are qualified to be appointed as the Judges of the High Court. Admittedly, the Advisory Board was not constituted as per Section 9 of the Act 1 of 1986 and therefore, the consideration made by the Board cannot be said to be a valid consideration for the purposes of the Act 1 of 1986. This violates the essential fundamental safeguards as enshrined under Article 22(4) & (5) of the Constitution of India and renders the detention orders invalid. He relied on decision of Gauhati High Court in Tarun Kumar Das and Others Vs. State of Assam and Others, 1982 Cri L J 1054 and a Full Bench decision of the Patna High Court in Raj Kumar Gupta Vs. State of Bihar and Others, AIR 1990 Pat 32 . 7. On the other hand, Sri Syed Khader Mastan, learned counsel appearing on behalf of the learned Additional Advocate General, argues the absence of one member in the Advisory Board is a mere irregularity and would not affect its decision, particularly, in view of Section 11(3) of the Act 1 of 1986 wherein it is stated that the opinion of the majority of the members shall be deemed to be the opinion of the Board. 8. Liberty of an individual is the most cherished right under our constitutional scheme and is enshrined as a fundamental right under Article 21 of the Constitution. Liberty cannot be taken away except by a procedure established by law which has to be just, reasonable and fair. Ordinarily, in a constitutional democracy no person shall be imprisoned without a regular trial. Liberty of an individual is the most cherished right under our constitutional scheme and is enshrined as a fundamental right under Article 21 of the Constitution. Liberty cannot be taken away except by a procedure established by law which has to be just, reasonable and fair. Ordinarily, in a constitutional democracy no person shall be imprisoned without a regular trial. The sole exception to the rule is recognised to the form of preventive detention laws which is rare weapon in the arsenal of the State to be sparingly used wherein the opinion of the Government the ordinarily law of the land is not adequate to control the malevolent acts of an individual and his detention is imperative to protect national security, maintenance of public order or preservation of environment etc. Constitutional foundation of such laws may be traced to Article 22(4) to (7) of the Constitution of India. Article 22(4) to (7) of the Constitution of India reads as under: “22(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless— (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under subclauses (a) and (b) of clause (7).” (5) when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe:- (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub - clause (a) of clause (4) (b) the maximum period for which any person may in any class or classes of cases be detained under any law proving for preventive detention ; and (c) the procedure to be followed by an Advisory Board in an inquiry under the sub-clause (a) of clause (4)”. 9. A perusal of the constitutional provisions makes it clear any law providing for preventive detention must mandatorily provide for constitution of an Advisory Board consisting of persons, who are or have been or are qualified to be appointed as Judges of the High Court and the Board shall upon consideration of the available materials including representation, if any, of the detenu review an order of detention within three months of the date of detention. This is one of the primary pillars of the constitutional safeguards available to a detenu against an order of detention. Section 9 of the Act 1 of 1986 which gives expression to this constitutional requirement reads as follows: “9. Constitution of Advisory Boards: - (1) The Government shall whenever necessary, constitute one or more Advisory Boards for the purposes of this Act. (2) Every Such Board shall consist of a Chairman and two other members, who are, or have been Judges or are qualified to be appointed as Judges of a High Court”. 10. Section 10 of the Act 1 of 1986, provides in every case where an order of detention has been made, the Government shall within three weeks from the date of detention place before the Advisory Board constituted by them under Section 9 the grounds on which order has been made and the representation, if any, made by the detenu as well as the report of the detaining authority under sub-section (3) of Section 3. 11. 11. Section 11 of the Act 1 of 1986 provides the procedure to be adopted by the Board. It states upon receipt of reference under Section 9, the Advisory Board after considering the materials placed before it and after hearing, the detenu, submit its report to the Government within seven weeks of the date of detention. Sub-Section (3) of Section 11 of the Act 1 of 1986 inter alia provides that in the event, when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. 12. Upon receipt of the report of the Advisory Board that there is sufficient cause for detention the Government may confirm the detention order, however, if the report is to the contrary, the detenu must be forthwith released. Under the aforesaid statutory scheme, the Advisory Board constituted under Section 9 of the Act 1 of 1986, performs a most vital duty of independently reviewing the detention order after considering the materials placed before it including the representation, if any, of the detenu and upon giving the detenu of being heard. Only upon receipt of report of the Board, the Government may confirm the detention order. In the event the opinion of the Board is in favour of the latter, the detenu must be forthwith released. Thus, the Advisory Board is an independent body, whose report is a sine qua non for confirming a detention order and such report is a binding one in the event it is in favour of the detenu. The Advisory Board therefore is cast with a pivotal duty of evaluating the sufficiency of the order of detention and to ensure its independence and expertise, the constitution makers made it imperative that the Board shall consist of members, who are, or have been Judges or are qualified to hold the high office of a Judge of a High Court. In deference to such constitutional mandate, Section 9 of the Act 1 of 1986 provided that the Board shall consist of a Chairman and two other members, who are or have been or are qualified to be appointed as Judges of a High Court. In utter breach of such mandatory requirement, the Advisory Board which reviewed the detention orders in these cases comprised of a Chairman and one member alone. 13. In utter breach of such mandatory requirement, the Advisory Board which reviewed the detention orders in these cases comprised of a Chairman and one member alone. 13. In Raj Kumar Gupta (Supra 2) a Full Bench of the Patna High Court had been called upon to decide a similar issue wherein the Advisory Board which comprised of two members, instead of three members as required under Section 9 of the Bihar Control of Crimes Act, 1981, had reviewed the detention order. Dealing with the aforesaid issue, the Bench held as follows: “21. From the above mentioned provisions it would be clear that the opinion of the Advisory Board plays an important role in the matter of passing of the order of confirmation of the detention order and continuance of the detention of the person concerned. Section 18 of the Act reads as follows: "Constitution of Advisory Board --(l)The State Government shall, whenever necessary, constitute Advisory Board for the purpose of this Act. (2) The Board shall consist of three persons who are, or have been, or are qualified to be appointed as Judges of High Court, and such person shall be appointed by the Government. (3) The Government shall appoint one of the members of the Advisory Board, who is or has been, a Judge of a High Court to be its Chairman.” Constitution of the Advisory Board under section 18 of the Act cannot be treated as an empty formality and it will not be appropriate to say that mere issue of a notification constituting Advisory Board under Section 18 of the Act by the State Government will be enough. In view of the importance of the opinion of the Advisory Board in the matter of continuance of the detention of the detenu, the purpose of constitution, the number of members included in the Advisory Board and their qualification as occurring in Section 18 of the Act are significant. Sub-section (2) of Section 18 of the Act clearly says that the Advisory Board shall consists of three persons. Thereafter their qualifications have been given in this provision. The constitution of the Advisory Board cannot be truncated to mean that less than three persons will be deemed to constitute the Advisory Board within the meaning of Section 18 of the Act. Thereafter their qualifications have been given in this provision. The constitution of the Advisory Board cannot be truncated to mean that less than three persons will be deemed to constitute the Advisory Board within the meaning of Section 18 of the Act. The purpose for which the Act requires that the Advisory Board should be constituted is further found in Sections 19,20 and 21 of the Act. Under Section 19 of the Act, a reference of the case of the detenu is to be made to the Advisory Board and the case of the detenu including the ground of detention and representation, if any, made by the detenu are to be placed before the Advisory Board constituted under Section 18 of the Act within three weeks from the date of detention of the person under the order. Section 20 of the Act lays down the procedure of Advisory Board and Section 21 of the Act relates to the action upon the report of the Advisory Board. Thus it is clear that wherever the words 'Advisory Board' occur in the Act it means the Advisory Board constituted under Section 18 of the Act, which cannot be lost sight of. The whole purpose behind these legal requirements of opinion by the Advisory Board appears to be that before taking any action with respect to the detention of a detenu the Government should have before it the opinion of a Body of experts who are highly qualified persons and consist of personalities independent in their opinion. Therefore, it can be said that the Advisory Board has to play an important role in the matter of detention of a detenu. The legislature in its wisdom appears to have taken a view that application of three minds to a particular aspect will be better than the application of mind by a lesser number of persons. If the legislature would have intended that opinion of some of the members of the Advisory Board will have the same value as that of the three members constituting the Advisory Board a provision of formation of quorum would have been there in the Act, which I do not find in the Act. If the legislature would have intended that opinion of some of the members of the Advisory Board will have the same value as that of the three members constituting the Advisory Board a provision of formation of quorum would have been there in the Act, which I do not find in the Act. If the legislature would have intended that the consideration of the case of a detenu by only two persons would have sufficed under sections 20 and 21 of the Act besides the words 'Advisory Board', the words 'or its members' also would have been embodied in the provisions wherever the word relating to the Advisory Board has been used. The words 'Advisory Board' are to be found in the different provisions of the Act. So either in loose sense or in strict sense of law, the words 'Advisory Board’ are always to mean the Advisory Board constituted under Section 18 of the Act, which consists of three members, including the Chairman. So in these circumstances it will not be proper interpretation of the Statute that mere issue of notification under Section 18 of the Act constituting Advisory Board consisting of three persons will be enough compliance and thereafter the functioning of the Advisory Board will be dissociated with the constitution thereof. The intention of the legislature can be gathered if this aspect of the legal point is analysed from another angle. The wordings of different provisions of the Act, which I will deal hereinafter, will make it abundantly clear that the words 'Advisory Board' mean the Advisory Board constituted under Section 18 of the Act. The words 'Advisory Board' wherever used in different provisions will mean the Advisory Board constituted under Section 18 of the Act consisting of three persons and wherever any function is to be discharged by the Advisory Board, that must be discharged by all the three members of the Advisory Board. In absence of any one of the members the Advisory Board will cease to exist. In Section 19 of the Act which has already been pointed out, the words 'Advisory Board' have further been clarified by adding words 'constituted under Section 18'. Section 18 of the Act says that the Advisory Board will consist of three persons. In absence of any one of the members the Advisory Board will cease to exist. In Section 19 of the Act which has already been pointed out, the words 'Advisory Board' have further been clarified by adding words 'constituted under Section 18'. Section 18 of the Act says that the Advisory Board will consist of three persons. An argument may be advanced on the basis of Sub- section (3) of Section 20 of the Act, which lays down that where there is difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. Therefore, in any case opinion of the two members, which will form the majority, has to prevail and therefore consideration of the case of the detenu by two members will amount to proper compliance of the requirement of the Act. In my view the above argument will be fallacious. Subsection (3) of Section 20 of the Act speaks about the opinion of the majority of the members of the Advisory Board. Question of opinion of majority will only arise when there is any opinion of minority, i.e., dissenting opinion. If consideration of the case of a detenu by two members only is made, in that case question of majority opinion will never arise. One may be misled by the reasoning that as soon as both the members concurred in their opinion will it be the opinion of the majority of the members hence it will be the opinion of the Advisory Board. In case of only two members being present during the consideration of the case of the detenu, there can be only two situations, either the opinion of the two members will be unanimous or equally divided. The question of opinion of the majority of members will arise only when there is a dissenting opinion of the third member. So in my view Sub-section (3) of Section 20 of the Act sets the legal position at rest that the case of the detenu must be considered by all the three persons constituting the Advisory Board under Section 18 of the Act and the Advisory Board will mean all the three members of the Advisory Board, not any particular number of members. 22. 22. Another aspect of this point is that the absence of third member of the Advisory Board may vitally affect the opinion of the two members because if the third member also takes part in the deliberation and expresses his own view, any of the other two members who form certain opinion can change his own opinion on the reasonings advanced by the third member. So the consideration of the case of the detenu by all the members of the Advisory Board appears to be desirable in the interest of justice to achieve the purpose of the provisions of the Act relating to the Advisory Board. In case only two members sit together and consider the case of detenu, the detenu will be deprived of the consideration of his case by the third member whose presence and views could have turned the table and the Advisory Board could have come to a different conclusion. In this way also the meaning of the words 'Advisory Board' has to be strictly construed within the meaning of Section 18 of the Act. 23. There is yet another indication in Section 18 of the Act itself, which makes it clear that the Advisory Board means all the three members. Under Section 18 of the Act distinction has been made between the Chairman and the two other members of the Advisory Board. The qualification of the Chairman appears to be higher than the qualification of other members, as provided in Section 18 of the Act. Sub-section (3) of Section 18 of the Act lays down that the Government shall appoint one of the members of the Advisory Board, who is or has been a Judge of a High Court to be its Chairman. Sofar being Chairman the necessary qualification is that either he should be a sitting Judge or an ex-Judge of a High Court but for being appointed as the Members only qualification is that they should be qualified to be appointed as Judges of High Court. If the purpose of the enactment would have been that the opinion of the two members only will also be the opinion of the Board, persons having different qualifications would not have been included in Section 18 of the Act. There may be a contingency when the Chairman himself may be absent. If the purpose of the enactment would have been that the opinion of the two members only will also be the opinion of the Board, persons having different qualifications would not have been included in Section 18 of the Act. There may be a contingency when the Chairman himself may be absent. Can it be said that the consideration by only other two members who are not so qualified as the Chairman will be deemed to be the opinion of the Board? It has to be answered in negative, since the detenu in that case will be deprived of the consideration of his case by a person having better qualification than the other two persons and the very purpose of these provisions under the Act will be defeated. 24. From what has been stated above, it has to be concluded that the opinion of only two members of the Advisory Board cannot be held to be the opinion of the Advisory Board in strict sense of the Act and consideration of the case of a detenu by all the three members is the legal requirement under the Act which must be adhered to.” 14. Similarly, a Bench of the Gauhati High Court in Tarun Kumar Das (Supra 1) held in paragraphs 4 to 6 as follows: “4. The present Ordinance is a law providing for preventive detention which, inter alia, provides constitution of the Advisory Board, reference to Advisory Boards, procedure to be followed by the Advisory Board an action to be taken by the Govt. on receipt of the opinion of the Board, Section 9(1) empowers Governments to constitute "one or more Advisory Boards for the purpose of this Ordinance". Emphasis supplied. It is a measure of abundant caution. In the event of non-availability or inability of one Advisory Board to function, the other Board or Boards may take up the cases. Section 9(3) provides as under;- 9(3). Every such Board shall consist of a Chairman and not less than two other members and the Chairman shall be a serving Judge of the appropriate High Court. (Emphasis supplied). The language of the provision is explicit and conveys a clear-cut denotation that "an Advisory Board" must consist of a Chairman and "not less than two other members". It is also the mandate of Article 22(4). It is a determination of a quorum for a legally valid Advisory Board. (Emphasis supplied). The language of the provision is explicit and conveys a clear-cut denotation that "an Advisory Board" must consist of a Chairman and "not less than two other members". It is also the mandate of Article 22(4). It is a determination of a quorum for a legally valid Advisory Board. We have no hesitation to arrive at the finale that an Advisory Board must consist of a Chairman and at least two other members. There cannot be a legally valid Advisory Board consisting of a Chairman and less than two other members. 5. We have referred to the history, the background, how and why the Advisory Board was brought in Article 22(4) of the Constitution. An appropriate Govt. must within three weeks from the date of detention refer a case before an Advisory Board. The mandate is imprinted in Section 10 of "the Ordinance". Such an Advisory Board must be a Board duly constituted Under Section 9(1)- The appropriate Government is bound Under Section 10 to refer the case of a detenu before the Advisory Board and forward the grounds on which the order has been made and report sensation, if any, made by the detenu. "The Advisory Board" is bound Under Section 11 of the Ordinance to consider the materials placed before it and to decide the case of the detenu, and to submit a report in writing whether or not there is sufficient cause for the detention. The functions of the Advisory Board are to (i) to consider the material placed before it, (ii) to call for further information, if deemed necessary, (iii) to hear the detenu, if he desires to be heard and (iv) to submit a report in writing within seven weeks from the date of detention of the detenu to the appropriate Government as to whether there is sufficient cause for "such detention" or whether the detention is at all justified. The important functions of the Advisory Board are self-evident. Article 22(5) envisages a dual obligation of the Government and corresponding dual right in favour of a detenu namely, (1) to have his representation independently considered by the Government and (2) to have his representation, in the light of all the facts and circumstances of the case, considered by an Advisory Board. An Advisory Board is to report whether there is sufficient cause for detention. An Advisory Board is to report whether there is sufficient cause for detention. What it has to determine is whether the detention is at all justified. The setting up of an Advisory Board to determine whether such detention is justified is a constitutional safeguard against arbitrary detention. Without the intervention of an Advisory Board, an independent body with persons on it of judicial qualification of a high order, detention beyond the period prescribed, (herein three weeks from the date of detention) must be held to be illegal. These conclusions we draw from Puranlal Lakhanpal v. Union of India: 1958 CriLJ 283, Shibapada Mukharjee v. State of West Bengal:1972 CriLJ 845; Ranjit' Dam v. State of West Bengal AIR1972 SC 1753 and other decision of the Supreme Court. It has been ruled by the Supreme Court in Abdul Karim v. State of West Bengal 1969 CriLJ 1446 that Article 22 prescribes the minimum procedure that must be included in any law permitting preventive detention and if such requirements are not observed, the detention infringes the fundamental right of the detenu guaranteed under Articles 21 and 22 of the Constitution. It has been further held that all the procedural requirements of Article 22 are mandatory in character and even if one of the procedural requirements is not complied with the order of detention would be rendered illegal. 6. Under these circumstances we are constrained to hold that the consideration and deliberations of the Hon'ble Chairman and a Member in place of 3(three) members constituting the Board was a positive violation of Articles 21 and 22 of the Constitution as well. We are constrained to hold that the provision of Section 9(3) is mandatory. It is true that Section 11(3) provides that in case of difference of opinion among the members forming the Advisory Board, the opinion of the majority shall be deemed to be the opinion of the Board, but it does not negate the provision of Section 9(3). The Section does not empower only two members to constitute an Advisory Board. Section 11(3) is an enabling provision where a duly constituted Advisory Board consisting of a Chairman and at least two members differs, the majority opinion shall be deemed to be the opinion of the "Board"- This is the only rational answer that can be fathomed from the scheme of the Ordinance. Section 11(3) is an enabling provision where a duly constituted Advisory Board consisting of a Chairman and at least two members differs, the majority opinion shall be deemed to be the opinion of the "Board"- This is the only rational answer that can be fathomed from the scheme of the Ordinance. Under similar circumstances the Special Bench of this Court in Kishorilal v. State MANU/GH/0021/1951(SB) held that where a detenu's case was considered by only two members and not by all the 3 members of the Advisory Board, the fundamental right of the detenu guaranteed by Article 21 of the Constitution was infringed and the detenu was entitled to liberty. We are in respectful agreement as well as bound by the Special Bench decision of this Court. The State could not advance any argument to distinguish Kishorilal (supra) nor could the learned Government Advocate point out any decision which has directly or indirectly affected, modified or overruled the decision. Therefore, we hold that the determination made by the Chairman and only member was violative of Arts- 21, 22(4) and 22(5) of the Constitution read with Section 9(3) of the Ordinance and the petitioner's guaranteed Fundamental Rights as well as statutory rights were violated. For the foregoing reasons we hold that the detention of the petitioner, as the case of the detenu was not considered by a "duly constituted Advisory Board" within a period of three weeks from the date of detention as required Under Sections 9 and 10 of the Ordinance. The order of detention was, therefore, quashed by our order dated 13-1-1981 and the detenu was set at liberty.” 15. The ratio of the aforesaid decisions is apposite to the facts of the present case. Section 9(2) of the Act 1 of 1986 says that every Board shall consist of a Chairman and two other members. Requirement of a multiple members in the Advisory Board is to ensure that there is a free exchange of views amongst the members with regard to sufficient cause to detain a person - a mandatory requirement of Article 22 (4) of the Constitution of India. When the State chooses to exercise its nuclear option of triggering a detention order under any preventive detention law, it must ensure that the rights of the detenu under the law are strictly protected. Proper constitution of an Advisory Board under the law is one of such pre-requisites. When the State chooses to exercise its nuclear option of triggering a detention order under any preventive detention law, it must ensure that the rights of the detenu under the law are strictly protected. Proper constitution of an Advisory Board under the law is one of such pre-requisites. In the present cases, the State has singularly failed to discharge its legal duty in that regard. It has not constituted the Advisory Board as required under section 9 of the Act 1 of 1986. Report submitted by an Advisory Board, which is not constituted as per law cannot be treated as a valid one. When law prescribes a thing to be done in a particular manner, the same has to be done in that manner or not at all. To ensure the vital role played by the Advisory Board in protecting the fundamental rights of the detenu enshrined under Article 22 (4) and (5) of the Constitution, it is imperative that the Board must be strictly constituted as per law, failing which, its report cannot be the basis for confirmation of the detention order. It has been argued that in the cited cases, although, three members were available, two of them had opined with regard to sufficiency and hence, the cases are distinguishable. We are unable to accept such contention. In fact, the present cases portray a more egregious breach of the constitutional mandate. While in the cited decisions, the State had constituted a Board comprising of three members, but two of them had signed the report of the Board, in the present cases, the State failed to constitute the Board itself as per Section 9 of the Act 1 of 1986. Having failed in its duty to act as per law and constitute Board in terms of Section 9 of the Act 1 of 1986 (Supra), it cannot stand in the mouth of the State to say that the report of such an improperly constituted Board would be a valid one. Plurality of members in a duly constituted Advisory Board is an absolute necessity to ensure that there is a free and fair deliberation on the existence of sufficient case for detaining a person without trial under the Act 1 of 1986, based on the materials placed before it. Plurality of members in a duly constituted Advisory Board is an absolute necessity to ensure that there is a free and fair deliberation on the existence of sufficient case for detaining a person without trial under the Act 1 of 1986, based on the materials placed before it. Absence of one member would impair the quality of deliberation as his perspective in the matter would be absent and the impact of his persuasive faculties on the other members of the Board would be lost and not reflected in the final opinion of the Board. Thus, it cannot be said that the improper constitution of the Board comprising of the Chairman and one member only is a mere irregularity and would not cause prejudice to the detenu. 16. Learned counsel appearing on behalf of the learned Additional Advocate General has drawn our attention to Section 11(3) of the Act 1 of 1986 which provides for the majority decision of the Board to prevail over the minority view. We are of the view that the said provision is of little help to the State. A majority view can only be arrived at in a three member body as envisaged under section 9 of the Act 1 of 1986 and can never arise when the Board constituting of Chairman and one member are divided in their opinion. 17. As discussed above, presence of third member in the course of hearing as well as deliberations is of seminal importance, since such member in the course of deliberations may give his inputs and thereby influence the ultimate opinion of the board. It is also pertinent to mention there is no provision in the Act 1 of 1986 which saves the validity of the report of an Advisory Board, which is not properly constituted under the Act. Thus, from every angle of the matter, the report of the Advisory Board which is not duly constituted under Section 9 of the Act 1 of 1986 is invalid in law. Hence, the confirmation of the detention orders on the basis of such invalid reports purportedly, under Section 12 of the Act 1 of 1986, are liable to be quashed. 18. Hence, the confirmation of the detention orders on the basis of such invalid reports purportedly, under Section 12 of the Act 1 of 1986, are liable to be quashed. 18. Accordingly, Writ Petition No.9945 of 2021 is allowed setting aside the detention order dated 08.03.2021 passed by the 2nd respondent, in relation to petitioner’s husband, Bodde Sreenivasulu @ Sreenu, S/o. Chinna Venkata Subbaiah @ Venkata Subbaiah, Age; 36 years, R/o.D.No.8/1, Patrapalli, H/o. Chintharajupalli Village, Vontimitta Mandal, YSR Kadapa District, and also the consequential confirmation order vide G.O.RT.No.897, General Administration (SC.I) Department, dated 07.05.2021. The detenu- Bodde Sreenivasulu @ Sreenu, S/o. Chinna Venkata Subbaiah @ Venkata Subbaiah, Age; 36 years, R/o.D.No.8/1, Patrapalli, H/o. Chintharajupalli Village, Vontimitta Mandal, YSR Kadapa District, shall be set at liberty forthwith unless his confinement is required in relation to any other case. 19. Writ Petition No.10979 of 2021 is allowed setting aside the detention order dated 08.03.2021 passed by the 2nd respondent, in relation to petitioner’s husband, Shaik Simpathi @ Cheemparthi Fakruddin @ Goresab Fakruddin @ Pongodu @ Bongodu, S/o. Fakruvalli @ Sabun @ Subhan, Age: 27 years, R/o. Khaderpalli Village, Chapadu Mandal, YSR Kadapa District, and also the consequential confirmation order vide G.O.RT.No.898, General Administration (SC.I) Department, dated 07.05.2021. The detenu- Shaik Simpathi @ Cheemparthi Fakruddin @ Goresab Fakruddin @ Pongodu @ Bongodu, S/o. Fakruvalli @ Sabun @ Subhan, Age: 27 years, R/o. Khaderpalli Village, Chapadu Mandal, YSR Kadapa District, shall be set at liberty forthwith unless his confinement is required in relation to any other case. 20. Writ Petition No.10984 of 2021 is allowed setting aside the detention order dated 15.03.2021 passed by the 2nd respondent, in relation to petitioner’s husband, Nanubala Ramudu @ Andaala Ramudu, S/o. Chinna Gurrappa, Age: 41 years, R/o.D.No.4/64, Jangampalli Village, Viswanadhapuram Post, Mydukur Mandal, YSR Kadapa District, and also the consequential confirmation order vide G.O.RT.No.900, General Administration (SC.I) Department, dated 07.05.2021. The detenu- Nanubala Ramudu @ Andaala Ramudu, S/o. Chinna Gurrappa, Age: 41 years, shall be set at liberty forthwith unless his confinement is required in relation to any other case. 21. It is the duty of constitutional Court to be sentinel on the qui vive for protection of fundamental rights of every individual under the Constitution. Article 22 (4) of the Constitution of India provides no order of detention shall be valid beyond three (3) months unless an Advisory Board opines that there is sufficient cause for detention. 21. It is the duty of constitutional Court to be sentinel on the qui vive for protection of fundamental rights of every individual under the Constitution. Article 22 (4) of the Constitution of India provides no order of detention shall be valid beyond three (3) months unless an Advisory Board opines that there is sufficient cause for detention. Therefore, constitution of Advisory Board is a pre-requisite for the constitutional validity of any detention law. From this perspective, failure of the State to constitute Advisory Board according to the provisions of the law providing for preventive detention infracts the basic fundamental right of the detenu to have the order of detention reviewed by an independent body as contemplated under the said law. The present cases show that the Advisory Board has not been constituted in terms of Section 9 of Act 1 of 1986, as the Board did not comprise of Chairman and two members as required under the law. Report of an improperly constituted Board cannot form the foundation for confirming a detention order. Failure of the State to discharge its constitutional obligation as aforesaid makes it imperative for a Constitutional Court to issue appropriate directions so that individuals are not illegally deprived of their liberty by execution of detention orders under Act 1 of 1986, without having an opportunity of such orders being reviewed by a duly constituted Board under the law. 22. Accordingly, we direct the State to constitute an Advisory Board as per Section 9 of the Act 1 of 1986, that is, comprising of a Chairman and two other members immediately, but not later than one month from date. In the event, the Board is not constituted within the aforesaid time frame, the State shall be injuncted from passing any order of detention under the Act 1 of 1986 till the Advisory Board is so constituted. 23. A Copy of this order shall be communicated to the Chief Secretary, Government of Andhra Pradesh, Amaravati, for necessary compliance. There shall be no order as to costs. As a sequel, Miscellaneous Petitions, if Petitions shall stand closed.