Put an end to pernicious trend of passing illegal preventive detention orders: Supreme Court to Telangana Police

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The Supreme Court on Monday criticised the Telangana Police for ignoring fundamental rights of citizens and curbing their liberty while issuing preventive detention orders [Ameena Begum v. State of Telangana and ors].

A Bench of Justices Surya Kant and Dipankar Datta observed that such a trend should come to an end.

“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 judgment stated.

The Court added that it made such observations to remind the State authorities that the drastic provisions of the the 1986 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 are not to be invoked at the drop of a hat.

The Bench minced no words in pointing out the mechanical use of the law over the years.

“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,” the Court observed.

The Court made the observations while quashing a preventive detention order against the husband of the appellant, who had moved the Telangana High Court in a habeas corpus petition earlier this year. The High Court dismissed the petition and refused to set aside the detention order, leading to the instant plea.

The Court laid down the following guidelines for constitutional courts to consider when deciding on the legality of preventive detention orders. Courts are required to ensure that:

(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.

In this case, the top court found that the concerned authority had failed to differentiate between offences that create a “law and order” situation and those that tend to prejudicially affect “public order”.

It also found that there was lack of compliance of due process.

Further, the Bench underscored that detention orders should not be vaguely worded, and must be understood by the detenu.

“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.”

It went on to observe that the detention order was framed in such a way that it reflected the authorities’ intention to keep the man detained at any cost. On the reliance of the order on the man’s criminal antecedents, the top court noted,

“It is pertinent to note that in the three criminal proceedings where the Detenu had been released on bail, no applications for cancellation of bail had been moved by the State.”

The detention order and the High Court’s ruling were thus set aside. The husband of the appellant was ordered to be released fortwith.

Senior Advocate Sidharth Luthra appeared for the appellant while Senior Advocate Siddhartha Dave appeared for the Telangana government.

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