Improper preventive detention orders must be nipped in bud: SC

The bench also cautioned the state of Telangana against the issuance of improper detention orders, pointing out two of such orders that were recently nixed by the top court

A constitutional court has an obligation to protect citizens’ freedoms from arbitrary and unlawful detention, the Supreme Court has held, emphasising that the incapacity of state’s police apparatus to address law-and-order issues cannot serve as a justification for using preventive detention powers.

The judgment of the top court came while quashing the preventive detention order of a man under the Telangana Prevention of Dangerous Activities Act, 1986, following registration of two FIRs against him on charges of chain snatching (ANI)

“Preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be nipped in the bud. It must be struck down at the first available threshold,” said the apex court.

It further stated that the Supreme Court has repeatedly affirmed that an individual’s actions must be of a kind that precludes ordinary laws from dealing with them or from stopping subversive activities that negatively impact society in order for their actions to be considered “acting in any manner prejudicial to the maintenance of public order”.“The inability on the part of the state’s police machinery to tackle the law-and-order situation should not be an excuse to invoke the jurisdiction of preventive detention,” said the top court in its judgment on Thursday.

The bench, comprising Chief Justice of India Dhananjaya Y Chandrachud and justices JB Pardiwala and Manoj Misra, noted that the order for preventive detention cannot be justified unless the person being held is engaging in activities that are likely to instil fear and panic in the minds of those living in the affected area.

The court laid down a set of broad parameters for the authorities passing detention orders to ensure such directives are issued following an application of mind to relevant and vital materials and issuance of a speaking order justifying the order of detention.

“The satisfaction cannot be inferred by mere statement in the order that ‘it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order’. Rather the detaining authority will have to justify the detention order from the material that existed before him and the process of considering the said material should be reflected in the order of detention while expressing its satisfaction,” it held.

The absence of application of mind to the pertinent and proximate material and vital matters, it said, would show lack of statutory satisfaction on the part of the detaining authority, vitiating detention orders.

The judgment also underlined the important role an advisory board requires to play in reviewing an order of detention, highlighting it is the primary constitutional safeguard available to a person against an order of detention.

“The framers of the Constitution being in seisin of the draconian nature of an order of preventive detention and its adverse impact on individual liberty, have specifically put in place safeguards within Article 22 through the creation of an Advisory Board, to ensure that any order of preventive detention is only confirmed upon the evaluation and scrutiny of an independent authority which determines and finds that such an order for detention is necessary,” it noted.

The judgment of the top court came while quashing the preventive detention order of a man under the Telangana Prevention of Dangerous Activities Act, 1986, following registration of two FIRs against him on charges of chain snatching.

“What has been alleged against the detenu could be said to have raised the problems relating to law and order but we find it difficult to say that they impinged on public order. This court has time and again, reiterated that in order to bring the activities of a person within the expression of ‘acting in any manner prejudicial to the maintenance of public order’ the activities must be of such a nature that the ordinary laws cannot deal with them or prevent subversive activities affecting society,” it noted.

The bench also cautioned the state of Telangana against the issuance of improper detention orders, pointing out two of such orders that were recently nixed by the top court. “We hope that the State of Telangana takes what has fallen from this Court very seriously and sees to it that the orders of preventive detention are not passed in a routine manner without any application of mind,” it added.