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The Supreme Court on Monday condemned the growing trend in the state of Telangana of passing orders of preventive detention at the ‘drop of a hat’ without consideration of the liberty and freedom guaranteed to people under the Constitution of India.

A division bench of Justice Surya Kant and Justice Dipankar Datta reminded the authorities of the state of Telangana that the drastic provisions of the Preventive Detention Act should not be invoked without considering the fundamental rights guaranteed under the constitution:

“A pernicious trend prevalent in the state of Telangana has not escaped our attention. While the Nation celebrates Azadi Ka Amrit Mahotsav to commemorate 75 years of independence from foreign rule, some police officers of the said state who are enjoined with the duty to prevent crimes and are equally responsible for protecting the rights of citizens as well, seem to be oblivious of the Fundamental Rights guaranteed by the Constitution and are curbing the liberty and freedom of the people. The sooner this trend is put to an end, the better”

The Supreme Court took the opportunity to strongly criticise the reckless use of the Act by the detaining authorities:

“It requires no serious debate that preventive detention, conceived as an extraordinary measure by the framers of our Constitution, has been rendered ordinary with its reckless invocation over the years as if it were available for use even in the ordinary course of proceedings. To unchain the shackles of preventive detention, it is important that the safeguards enshrined in our Constitution, particularly under the ‘golden triangle’ formed by Articles 14, 19 and 21, are diligently enforced.”

Previously also, in Mallada K Sri Ram vs State of Telangana | 2022 LiveLaw (SC) 358, the Supreme Court had slammed the tendency of Telangana Police to routinely invoke preventive detention laws.

Guidelines For Testing Legality of Orders Of Preventive Detention

The Apex Court after referring to a catena of judgements on the requisites of a valid detention order and the scope of judicial reviewability of the same, culled out the following guidelines for constitutional courts to abide by. The Court must interfere if the order is found to be bad in law on application of the tests laid down below, the Court held. The legality of the order is to be tested based on whether:

(i) the order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied;

(ii) in reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute;

(iii) power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires;

(iv) the detaining authority has acted independently or under the dictation of another body;

(v) the detaining authority, by reason of self-created rules of policy or in any other manner not authorized by the governing statute, has disabled itself from applying its mind to the facts of each individual case;

(vi) the satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate;

(vii) the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale;

(viii) the ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached;

(ix) the grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and

(x) the timelines, as provided under the law, have been strictly adhered to.

Background of the Case

The Apex Court was considering an appeal against an order of the Telangana High Court that had refused to interfere with the detention order against the husband of the appellant in a writ of habeas corpus filed by her.

The challenge was against the detention order passed under Section 3(2) of the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act 1986.

Detention Order Must Be Precise And Simple, Laying Down Grounds For Detention

The Court stated that the detention order must precisely set out the grounds for detention in simple terms without being vague. The order must be comprehensible to the detenu, so he has a chance to contest it, the Court held.

“An order in plain and simple language providing clarity of how the subjective satisfaction was formed is what a detenu would look for, since the detenu has a right to represent against the order of detention and claim that such order should not have been made at all. If the detenu fails to comprehend the grounds of detention, the very purpose of affording him the opportunity to make a representation could be defeated. At the same time, the detaining authority ought to ensure that the order does not manifest consideration of extraneous factors. The detaining authority must be cautious and circumspect that no extra or additional word or sentence finds place in the order of detention, which evinces the human factor – his mindset of either acting with personal predilection by invoking the stringent preventive detention laws to avoid or oust judicial scrutiny, given the restrictions of judicial review in such cases, or as an authority charged with the notion of overreaching the courts, chagrined and frustrated by orders granting bail to the detenu despite stiff opposition raised by the State and thereby failing in the attempt to keep the detenu behind bar.”

Application of Mind When Imposing Maximum Sentence

The Court condemned the regular practice of detaining authorities imposing the maximum sentence of 12 months without application of mind. The Court stated that treating 12 months as the standard duration of detention was indicative of a mechanical approach by the authorities:

“Having observed the uncanny consistency of authorities continuing detention orders under the preventive detention laws for the maximum permissible span of 12 (twelve) months from the date of detention as a routine procedure, without the barest of application of mind, we think that it is time to say a few words with a view to dissuade continuation of detention orders till the maximum permissible duration unless some indication is provided therefore by the concerned Government in the confirmation order.” the Court said.

The Court also observed that under Article 22(4) of the Constitution, a preventive detention law cannot authorise the detention of a person beyond 3 (three) months unless an Advisory Board finds sufficient cause for such detention.

The Court noted that in this case, the Advisory Board in its report said that there was sufficient cause for detention of the detenu. Subsequent to which the government while confirming the Detention Order, directed that the detention be continued for a period of 12 months from the date of detention.

“Consideration of the matter by the Advisory Board, which consists of respectable members including retired High Court judges and those qualified to become High Court judges, was conceived to act as a safety valve against abuse of power by the detaining authority and/or to check the possibility of grave injustice being caused to a detenu. It is one thing to say that the Advisory Board has expressed an opinion that there is sufficient cause for the detention and, therefore, the detention has been continued; yet, it is quite another thing to say that the detention should continue for the maximum permissible period.” the Apex Court observed.

The purpose to be served by imposing maximum period of detention must be specified or the authorities could be accused of unreasonableness and unfairness, the Court said.

“Detention being a restriction on the invaluable right to personal liberty of an individual and if the same were to be continued for the maximum period, it would be eminently just and desirable that such restriction on personal liberty, in the least, reflects an approach that meets the test of Article 14.”

No Circumstance To Invoke Extraordinary Statute When Ordinary Criminal Law Provided Sufficient Means To Deal With Detenu

The Court noted that in the three criminal proceedings where the Detenu had been released on bail, the state did not move for cancellation of bail. The Court observed that when ordinary provisions of criminal law would have sufficed to deal with the detenu, there was no reason for the state to invoke the provisions of the preventive detention act, being an extraordinary statute.

“In the light of the same, the provisions of the Act, which is an extraordinary statute, should not have been resorted to when ordinary criminal law provided sufficient means to address the apprehensions leading to the impugned Detention Order. There may have existed sufficient grounds to appeal against the bail orders, but the circumstances did not warrant the circumvention of ordinary criminal procedure to resort to an extraordinary measure of the law of preventive detention.” the Apex Court said.

Differentiation Between Maintenance of ‘Public Order’ and Offences That Create A “Law and Order” Situation

The Court in the said case found that the impugned detention order failed to differentiate between offences which create a “law and order” situation and which affect “public order”.

The order had been passed under Section 3(1) of the Act, to prevent the detenu from acting in a manner prejudicial to the maintenance of public order.

The Court clarified that for an act to qualify as a disturbance to ‘public order’, the activity must impact the general public and evoked feelings of fear, panic, or insecurity. “Stray acts affecting private individuals and the repetition of similar such acts would not tend to affect the even flow of public life.” The Court observed.

The Court concluded that acts of the detenu did not qualify as those affecting maintenance public order.

Ultimately, the Apex Court quashed the impugned detention order and the judgement of the High Court and allowed the appeal.