Source: Supreme Court

Why in News?

The Supreme Court (SC) while expressing its concern over the increasing prevalence in Telangana of issuing preventive detention orders without due regard for the constitutional rights of individual liberty and freedom, has established a set of principles that should be adhered to by the courts when evaluating the legality of such detention orders in the matter of Ameena Begum v. The State of Telangana & Ors.

Background

• The present case arises from an order of the Commissioner of Police, Hyderabad City (Commissioner) passed against the Detenu under the provisions of 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 (Telangana Act of 1986).
• The present detention order reveals that the Detenu was ordered detention in March, 2021 under the category of White-Collar Offender and was released in August 2021 pursuant to a writ filed by his father in the Telangana High Court (HC).
• The Detenu thereafter did not mend his habitual nature of committing crimes of the nature such as outraging modesty of women, cheating, extortion, obstructing the public servants from discharging their legitimate duties etc. during 2022 and 2023, in quick succession.
• The Commissioner, with a view to prevent the Detenu from acting in a manner prejudicial to maintenance of public order ordered detention with reason that unless he is detained under the detention laws, his unlawful activities cannot be curbed.
• The detenue’s wife hence made the representation before the Advisory Board constituted under Section 9 of the Telangana Act of 1986 in March 2023 under the grounds mentioned in Section 10 of the same Act seeking revocation of the Detention Order.
  • She was informed by the Government that in absence of any valid grounds/reasons to set aside/revoke the Detention Order, her representation was being rejected.
• She then invoked the writ jurisdiction of the HC whereupon the parties were heard, and the judgment was delivered dismissing the writ petition.
• Hence, the appellant made the present appeal stating that the order of detention was illegal.

Court’s Observations

• The division bench of Justice Surya Kant and Justice Dipankar Datta of SC referred to a catena of judgements on preventive detention some of which are:
  • In the A.K. Gopalan v. State of Madras (1950) case, the SC examined the Preventive Detention Act of 1950 and established that the right to personal liberty under Article 21 of the Indian Constitution is distinct from the right to life and personal liberty under Article 19. It was further laid down that preventive detention could be valid for reasons not covered by Article 19. (Although later in the Maneka Gandhi v. Union of India (1978) case, the SC significantly widened and interpreted the term “personal liberty” to its widest degree).
  • In the Kharak Singh v. State of Uttar Pradesh (1963) case, the SC examined the constitutionality of certain preventive detention provisions and upheld the principle that the state has the power to enact laws for preventive detention, but those laws must comply with constitutional safeguards.
  • In the Haradhan Saha v. State of West Bengal (1974) case, the SC held that preventive detention law is to prevent the greater evil of elements imperiling the security and safety of a State, and the welfare of the Nation. Preventive detention, though a draconian and dreaded measure, is permitted by the Constitution itself but subject to the safeguards that are part of the relevant article and those carved out by the Constitutional Courts through judicial decisions of high authority which have stood the test of time.
  • In the Shibban Lal Saksena v. State of Uttar Pradesh (1954) case, the SC ordered for quashing of an order of preventive detention under the Detention Act reasoning that if one of the two grounds for ordering detention was illegal, the order of detention could not survive on the other ground.
• The SC in the present case formulated guidelines for a Constitutional Court when called upon to test the legality of orders of preventive detention would be entitled to examine following:
  1. 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.
  2. 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.
  3. 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.
  4. The detaining authority has acted independently or under the dictation of another body.
  5. 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.
  6. 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.
  7. The satisfaction has arrived at bearing in mind the 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.
  8. 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.
  9. 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.
  10. The timelines, as provided under the law, have been strictly adhered to.
• The SC under the present facts of the case found that the acts of the detenu did not qualify as those affecting maintenance of public order as required under the Act and thus quashed the impugned detention order and the judgment of the HC thereby allowing the appeal.

Preventive Detention

• It can be defined as imprisonment of a person without trial.
• In India, preventive detention is governed by various laws and regulations that empower the government to detain individuals for preventive reasons, primarily to maintain public order, national security, or the maintenance of essential supplies and services.
• Some of the key laws relating to preventive detention in India include:
  • Constitutional Provision: The Constitution of India, 1950 contains provisions related to preventive detention under Article 22 that outlines the safeguards for persons who are detained, including the right to be informed of the grounds for detention, the right to legal representation, and the right to have the detention reviewed by an advisory board.
  • The Preventive Detention Act, 1950 (Repealed): This was one of the earliest laws dealing specifically with preventive detention. It was repealed in 1969.
  • The Maintenance of Internal Security Act, 1971 (MISA): MISA was enacted during a state of emergency and granted the government broad powers to detain individuals to prevent subversion and the maintenance of public order.
  • The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA): COFEPOSA allows preventive detention to curb smuggling and foreign exchange violations.
  • The National Security Act, 1980 (NSA): It provides for preventive detention in cases affecting the security of the state, maintenance of public order, and certain other specified grounds. It allows for detention without trial for a specified period.
  • The Unlawful Activities (Prevention) Act, 1967 (UAPA): It primarily deals with actions related to unlawful activities and terrorism but also contains provisions for preventive detention of individuals involved in such activities.