Preventive detention based on capricious exercise of powers must be nipped in bud: SC

New Delhi, Mar 23 (PTI) 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.