Preventive detention: India
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Rulings of the higher courts
Invalid if order delayed: SC, 2022
Oct 1, 2022: The Times of India
New Delhi : Observing that preventive detention is a serious invasion of personal liberty and all safeguards allowed under law must be adhered to, the Supreme Court held that unreasonable delay between getting a proposal and passing an order fordetention would make the order invalid, reports Amit Anand Choudhary. Abench of CJI U U Lalit and Justices S Ravindra Bhat and J B Pardiwala set aside apreventive detention order passed in Tripura five months after the proposal for it was received.
Preventive detention is not for law & order fears: SC
AmitAnand Choudhary, August 3, 2021: The Times of India
In an important decision, the Supreme Court ruled that the provision for preventive detention cannot be invoked over apprehension of law and order problems and said a person can be detained only in cases where public order is directly affected. Differentiating between the two, the apex court said that “law and order” comprehends disorders of less gravity than those affecting “public order”, which affects the larger public, leading to harm, danger or alarm or feeling of insecurity.
“There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large,” the court said.
‘FEAR IN PUBLIC’
Preventive detention necessary evil only to check public disorder: SC
A bench of Justices RF Nariman and Hrishikesh Roy quashed an order passed by the Telangana government to detain an alleged habitual fraudster on the ground that he was likely to cheat more members of the public if allowed to move freely. Justifying the action, the government contended that multiple FIRs were filed against the person and he was detained as he got anticipatory bail in all criminal cases. It pleaded the bench to give a liberal interpretation of “public order” to allow preventive detention but the court turned down the plea.
“Further, preventive detention must fall within the four corners of Article 21 (protection of life and liberty) read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect.”
“On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the court must ensure that the facts brought before it directly and inevitably lead to harm, danger or alarm or feeling of insecurity among general public or any section thereof at large,” it said.
The court passed the order on a plea filed by the wife of the accused challenging his detention order. Allowing her plea, the bench said, “While it can’t seriously be disputed that detenu may be a white-collar offender... yet a preventive detention order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order.”
Advocate Gaurav Agarwal, appearing for the petitioner, contended that the order was perverse as it was passed only because anticipatory bail was granted to the accused. The correct course of action would have been for the state to move to cancel the bail, he said.
Advocate Ranjit Kumar, appearing for the state, said the detenu had created fear among the gullible public, and since he was likely to commit similar offences in future, it was important to preventively detain him, as ordinary law had no deterrent effect on him. The bench rejected the plea of the state and said, “If a person is granted anticipatory bail/bail wrongly, there are remedies in the ordinary law to take care of the situation.” It said the state can appeal against the bail order granted and apply for cancellation.
Preventive detention must fall within the four corners of Article 21 (protection of life and liberty) read with Article 22 and the statute in question... ...for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law... before it can be said to affect ‘public order’, must affect the community or the public at large —SC
2023
AmitAnand Choudhary, Sep 6, 2023: The Times of India
New Delhi : Holding that governments cannot resort to preventive detention as a “tool for enforcement of law and order”, the Supreme Court has ruled that a habitual offender cannot be put under detention because of his “habituality” of committing offences but only when he is seen as having the potential to cause “public disorder”.
Differentiating between ‘law and order’ and ‘public disorder’, a bench of Justices Surya Kant and Dipankar Datta explained that when an offence is committed against an individual, it falls within the ambit of “law and or der” whereas a person can be said to have disturbed “public order” if the public at large is adversely affected by his conduct, and quashed the order passed by the Hyderabad police commissioner to put a man under preventive detention. “A pernicious trend prevalent in the state of Telangana has not escaped our attention,” the bench said. The commissioner had justified the decision on the ground that he was a habitual offender guilty of various offences, including cheating, extortion, robbery and criminal intimidation, and had noted that the ordinary law under which he was booked had failed as a deterrent.
2024
March 23, 2024: The Times of India
New Delhi: Terming preventive detention a draconian provision, Supreme Court has held that govt’s inability to tackle the law and order situation should not be an excuse to invoke it and any capricious or routine exercise of it must be nipped in the bud, reports Amit Anand Choudhary.
A bench of Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said preventive detention can be ordered only in case of public disorder and not for law and order problems.
Differentiating between these two, the court said that the distinction between them is one of degree and extent of the reach of the act in question on society.
“It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise the problem of law and order only,” the bench said.
