Supreme Court lays down rules for preventive detention
SC mandates authorities to provide detainees all relevant documents in a comprehensible language, upholding personal liberty and fair representation rights.
The Supreme Court on Thursday set stringent standards for authorities imposing preventive detention, making it mandatory to furnish all relevant documents and statements to the person being detained, in a significant ruling that bolsters personal liberty.
The decision, delivered by a bench headed by justice Bhushan R Gavai, emphasised the constitutional guarantee of personal freedom, and stressed the necessity for detainees to be provided with a fair and effective opportunity to challenge detention orders.
The bench, which also comprised justices Prashant Kumar Mishra and KV Viswanathan, ruled that the failure to supply all relevant documents and statements, especially in a language the detainee is conversant with, hampers their right to effectively contest the detention and, by extension, the constitutional right of effective representation.
Emphasising that the liberty of an individual is paramount and should be guarded zealously, the judgment set a high bar for detaining authorities, obliging them to not only inform detainees of the grounds of their detention but also ensure that all essential materials are provided in a comprehensible format. It further highlighted that authorities must guard against arbitrary actions and ensure that the rights of individuals under preventive detention are respected at every stage.
The 60-page judgment, authored by justice Gavai, held that the processes governing such detentions must adhere strictly to constitutional safeguards and that the prison authorities as well as the competent authority in the central government are obligated to decide a detainee’s representation with “utmost expedition”.
“In the matters pertaining to personal liberty of the citizens, the Authorities are enjoined with a constitutional obligation to decide the representation with utmost expedition. Each day’s delay matters in such a case,” asserted the bench.
The ruling came in response to a preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), upheld by the Kerala high court. The Supreme Court overturned this decision, citing significant procedural lapses that violated the detainee’s right of effective representation under Article 22(5) of the Constitution.
Drawing on the concept of personal liberty, the judgment cited Joy Adamson’s classic Born Free to underscore the sanctity of individual freedom. It underlined that while preventive detention laws allow for curbing liberty, courts must ensure that such rights are not arbitrarily suspended. “The right to personal liberty and individual freedom is paramount and cannot be taken away without following the procedure prescribed by law,” said the bench.
Central to the court’s decision was the requirement for detaining authorities to provide detainees with all materials relied upon when passing detention orders, regardless of whether the detainee had prior knowledge of such materials.
“All such material which has been relied upon by the detaining authority while arriving at its subjective satisfaction must imperatively be supplied to the detenue. Failure to do so hampers the detainee’s right to make an effective representation, as guaranteed under Article 22(5),” the court held.
In this particular case, Appisseril Kochu Mohammed Shaji, the detainee, had not been provided with a key witness statement, nor had he received translations of important documents in Malayalam, his native language at the time of his detention in August 2023.
The top court criticised these lapses as prejudicial, rendering the detention order legally unsound. While it may not be necessary to provide every document referenced in a passing or casual manner, the bench emphasised, all critical documents that inform the detaining authority’s decision must be furnished to the detainee.
The court also condemned the delay by prison authorities in handling Shaji’s representation. The representation, filed in September 2023, took over nine months to reach the central government.
“Such a callous and casual approach is a denial of the protection conferred by the Constitution,” said the judgment, adding that the detention order was liable to be quashed on this ground alone.
Holding that authorities must ensure detainees’ representations are transmitted and decided with “utmost expedition,” the bench decried the negligence of prison authorities, and noted that in the present technological age, documents could have easily been sent via email or tracked through speed post.
By the time Shaji’s representation was reviewed, nearly nine months had passed. Even then, the central government and the detaining authority delayed the decision by 27 and 20 days, respectively, after the representation was called from the prison authorities.
The court reprimanded the prison authorities for their “thoroughly callous” handling of Shaji’s case. It lamented that Shaji’s constitutional right to have his representation decided swiftly had been breached, reminding authorities that they are under a constitutional obligation to act with promptitude in matters concerning personal liberty.
The case arose from a March 2024 judgment by the Kerala high court, which affirmed a preventive detention order issued under the COFEPOSA Act. The high court had dismissed the habeas corpus petition filed by Shaji’s wife, rejecting the argument that the failure to supply a key witness statement, coupled with the fact that the detainee did not receive Malayalam translations of the documents, violated Shaji’s right to make an effective representation. The high court noted that Shaji’s involvement in illegal foreign currency dealings was clear from the evidence presented, and the detention was legally justified even without relying on the statement of a witness whose testimony was not provided to him.
The Supreme Court, however, took a contrary view, holding that such procedural lapses significantly prejudiced the detainee and violated Shaji’s rights under Article 22(5) of the Constitution, which obligated the detaining authorities to communicate the grounds of detention and afford them the earliest opportunity of assailing such orders of detention. It noted that non-supply of the statement of a witness was a major lacuna that rendered the detention order bad in law.
By an order on July 31, the bench had ordered Shaji’s immediate release, while the detailed judgment on Thursday provided the legal reasoning for this directive.