The High Court of Madhya Pradesh, Gwalior Bench, has referred a critical legal question to a Larger Bench regarding whether a District Magistrate (DM) has the authority to consider representations from a detenue under the National Security Act, 1980 (NSA), and whether failure to inform a detenue of this right vitiates the detention.
Background of the Case
The case, Vikas Tiwari v. State of Madhya Pradesh and Others (Writ Petition No. 327/2026), involves a resident of District Vidisha who was detained under Section 3 of the NSA following a criminal incident on October 20, 2025. A case (Crime No. 815/2025) was registered against him at Police Station Kotwali, Vidisha, for various offences under the Bharatiya Nyaya Sanhita (BNS).
Following this incident, the District Magistrate, Vidisha, passed a detention order on November 4, 2025, for an initial period of three months. This detention was later extended for another three months on February 4, 2026. The petitioner challenged these orders under Article 226 of the Constitution of India.
Arguments of the Parties
The petitioner’s counsel, Shri Somnath Seth and Shri Sushil Goswami, primarily argued that the detention proceeding was vitiated because the District Magistrate failed to inform the petitioner that a representation could be made to the DM himself. While the DM mentioned that representations could be made to the State Government, the Advisory Board, and the Central Government, the absence of the DM’s own name as an authority for representation was cited as a procedural lapse.
Relying on Section 8 and Section 14 of the NSA, the petitioner argued that the authority passing the order also has the power to revoke it under Section 14 read with Section 21 of the General Clauses Act, 1897. Therefore, the petitioner contended that the DM must decide representations until the State Government approves the detention. Reference was made to the Full Bench judgment of the MP High Court in Kamal Khare v. State of M.P. (2021) and the Apex Court’s ruling in Kamleshkumar Ishwardas Patel v. Union of India (1995).
The respondents, represented by Shri Vivek Khedkar, Senior Advocate/Additional Advocate General, argued that the NSA’s legal framework differs from other statutes like COFEPOSA or PIT NDPS. They contended that under Section 3(4) of the NSA, a DM’s order only remains in force for 12 days unless approved by the State Government, making the State Government the primary “Appropriate Authority” to decide representations.
Court’s Analysis
A Division Bench comprising Justice Anand Pathak and Justice Pushpendra Yadav analyzed the statutory framework of the NSA. The Court noted that under Section 3(4), the DM must “forthwith report” the detention to the State Government. The Bench observed:
“The effect of the approval by the State Government is that from the date of such approval the detention is authorised by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval.”
The Court highlighted a potential conflict between the Full Bench decision in Kamal Khare and the observations made by the Supreme Court in Kamleshkumar Ishwardas Patel. The Division Bench noted that in Kamleshkumar, the Constitution Bench was aware of Section 3(4) of the NSA and distinguished it from other acts where the detaining authority remains the sole authority.
The Bench further observed that once the DM refers the matter to the State Government, they become functus officio (having fulfilled their duty), as the records are moved to the higher authority. The Court stated:
“Therefore, no logic exists for consideration of representation by D.M. Therefore, making representation and taking decision over representation would not be an effective remedy for the detenue.”
The Decision
The Division Bench concluded that the issue regarding the DM’s authority and the validity of the process requires further clarity. Consequently, the Court referred five specific questions to the Hon’ble Chief Justice for consideration by a Larger Bench:
- Whether the DM has no authority to consider representations in light of the Kamleshkumar distinction?
- Whether the Full Bench in Kamal Khare incorrectly interpreted the law propounded in Kamleshkumar?
- Whether Section 8 of the NSA mandates that representations can only be considered by the Appropriate Government?
- Whether non-disclosure by the DM that a representation can be made to them vitiates the process?
- Whether the Kamal Khare judgment lays down the correct law in light of the Apex Court’s Constitution Bench rulings.
The Court denied interim relief to the petitioner at this stage and directed the Registry to place the matter before the Chief Justice for the constitution of a Larger Bench.
Case Details Block
- Case Title: Vikas Tiwari vs State of Madhya Pradesh and Others
- Case Number: WRIT PETITION No. 327/2026
- Bench: Justice Anand Pathak & Justice Pushpendra Yadav
- Date: March 31, 2026
