Observing that
preventive detention is a draconian measure and any such move based on a
capricious or routine exercise of powers must be nipped in the bud, the Supreme
Court has set aside a Telangana High Court order rejecting a detenu's appeal.
A bench headed by
Chief Justice of India D Y Chandrachud on Thursday said the essential concept
of preventive detention is that the detention of a person is not to punish him
for something he has done but to prevent him from doing it.
"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," the bench also comprising Justice J B Pardiwala and Justice
Manoj Misra said.
"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," the top court said.
The appellant was
arrested under the Telangana Prevention of Dangerous Activities Act of 1986 on
the order of the Rachakonda police commissioner in Telangana on September 12
last year. Four days later, the Telangana High Court rejected the man's
petition, assailing the detention order.
The Supreme
Court, in its recent order, said the law is well settled that the power under
any enactment relating to preventive detention has to be exercised with great
care, caution and restraint.
It said that the
pendency of prosecution is no bar to an order of preventive detention and an
order of preventive detention is also not a bar to prosecution.
"We are of
the view that mere registration of the two FIRs for the alleged offences of
robbery etc. could not have been made the basis to invoke the provisions of the
Act 1986 for the purpose of preventively detaining the appellant herein on the
assumption that he is a "GOONDA" as defined under Section 2(g) of the
Act 1986.
"What has
been alleged against the appellant 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," the bench said.
It added the
court has time and again reiterated that 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.
While the
expression 'law and order' is wider in scope inasmuch as contravention of law
always affects order, 'public order' has a narrower ambit and could be affected
by only such contravention which affects the community or the public at large,
the top court bench said.
"The
distinction between the areas of 'law and order' and 'public order' is one of
degree and extent of the reach of the act in question in 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," the bench
said.
The top court
said the grounds for the order should be furnished to the detenu and the
decision of the authority must be the natural culmination of the application of
mind to the relevant and material facts available on the record.
"While
making a detention order, the authority should arrive at a proper satisfaction
which should be reflected clearly, and in categorical terms, in the order of
detention," the top court said.
It underscored
that according to the Constitution, any law about preventive detention must
provide for the formation of an advisory board consisting of persons who have
been or qualified to be appointed as judges of high courts.
"An advisory
board setup under preventive detention legislation is required to undertake a
proper and thorough scrutiny of an order of detention placed before it, by
appreciating all aspects and angles before expressing any definite opinion in
its report," the Supreme Court said.
It said the
advisory must take into consideration all aspects justifying the detention and
its legality instead of confirming the "subjective satisfaction" of
the detaining authorities.
Setting aside the
high court's order, the top court quashed the detention order.