‘Preventive detention only in difficult situation’

In an important judgment upholding individual freedoms and civil liberties, the Supreme Court has ruled a person can be put behind bars under a preventive detention law only if the ordinary criminal law is not able to deal with a situation.

In an important judgment upholding individual freedoms and civil liberties, the Supreme Court has ruled a person can be put behind bars under a preventive detention law only if the ordinary criminal law is not able to deal with a situation.

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A three-judge bench headed by justice Markandey Katju said: “If the ordinary law of the land (IPC and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.”

The ruling came on a batch of petitions, including one filed by Rekha, wife of Ramakrishnan, who was detained under a preventive detention law in April 2010, on charges of selling expired drugs. She had challenged the Madras high court dismissing her habeas corpus petition.

“A mere ipse dixit (an unproven assertion) statement in the grounds of detention cannot sustain the detention order and has to be ignored,” the SC said setting aside the HC order.

Holding that the grounds of detention were not sufficient, the SC ordered release of eight persons put behind bars under preventive detention.

On a constitution bench verdict in Haradhan Saha’s case, the bench said, “The observation in Saha’s case cannot be regarded as an unqualified statement. The earlier bench had ruled a person’s trial for an offence did not debar the authorities from passing a detention order under a preventive detention law.

“In our opinion, Article 22(3)(b) of the Constitution which permits preventive detention is only an exception to Article 21 (right to life and liberty) of the Constitution.”

An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21…Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial,” the SC said.

“It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (IPC or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to,” it said.