'Without Much Ado': Kerala High Court Rejects Challenge Against Kerala Anti-Social Activities (Prevention) Act [KAAPA]

The Kerala High Court rejected a challenge raised against Kerala Anti-Social Activities (Prevention) Act, 2007 [KAAPA].

"We do not find any reason to consider the challenge raised against KAA(P)A since there can be no repugnancy found and the legislation referred to are enacted by the Union Parliament and the State Legislature on two different aspects contained in Entry 3 of List III of the 7th Schedule to the Constitution of India. There is no legislation by the Union Parliament on matters dealt with in KAA(P)A.", the bench comprising Justices K.Vinod Chandran & Ziyad Rahman A.A. said in Vilasini Ramachandran vs. Union of India.

In this case, the petitioner, the mother of a detenu, had challenged KAA(P)A on the ground that it is in direct conflict with Section 3 of the National Security Act and, hence, the Act passed by the State Legislature is unconstitutional on the of repugnancy, being violative of Article 254 of the Constitution of India.

The detenue was arrested on 27.10.2020. The matter was referred to the Advisory Board which confirmed the order on 24.12.2020. Representations were filed by the detenu before the Advisory Board and the Government which was rejected on 18.01.2021.

"4. We do not find any reason to consider the challenge raised against KAA(P)A since there can be no repugnancy found and the legislation referred to are enacted by the Union Parliament and the State Legislature on two different aspects contained in Entry 3 of List III of the 7th Schedule to the Constitution of India. There is no legislation by the Union Parliament on matters dealt with in KAA(P)A. The broader question of preventive detention interfering with the civil liberties; the ground has been found to be specious in the Constitution Bench decision in A.K Roy. We reject the said challenge without much ado.",  the court said.

While confirming the detention orders, the bench observed that in this case, the detenu is a person who has been habitually indulging in crimes, that too causing threat, fear, nuisance and disturbance to the society at large. Referring to an earlier judgment, Joicy v. State of Kerala[2018 (1) KHC 37 (DB)], the bench observed:

 Police Officers are also human beings and individuals. If such Law enforcement Officers, who are in a better position than an ordinary citizen to thwart any attempts on their body and limbs, are themselves subjected to attacks, then the threat caused to an ordinary citizen by such anti-socials can only be imagined. It is not an acceptable preposition that when police officers are assaulted any number of times, there could be no proceedings taken under KAA(P)A going by Section 2(p) (iii). The provision is intended to curb the misuse of power by Police Officers and to safeguard the interest of the detenu. As in the cited decision, here too, the detenu is a person who has been habitually indulging in crimes, that too causing threat, fear, nuisance and disturbance to the society at large.

Addressing the contentions regarding non consideration of representation of mother, the bench observed thus:

"The binding precedent, as we see, is that if a representation is addressed to the Government alone, before the Advisory Board enters on a finding the same has to be forwarded to the Advisory Board for consideration. Even if the Advisory Board confirms the order after consideration of the representation also; the Government would still be obliged to consider that representation even if the Government agrees with the opinion of the Advisory Board. Likewise if a representation is made to the Advisory Board and the Advisory Board after consideration confirms the order of detention, then the representation has to be forwarded to the Government for independent consideration. In the present case, representations were made to both the Advisory Board and the Government. Even before the date of representation, the Advisory Board confirmed the order of detention. The Government, however, despite confirming the order of detention, considered the representation and rejected it, without any delay. We cannot draw a parallel to the facts considered by two different Division Benches in the cited decisions. Our conclusion is that there is no scope for interference with the order of detention as confirmed by the Advisory Board and the Government. We reject the writ petition."

Case: VILASINI RAMACHANDRAN vs. UNION OF INDIA  [W.P(Crl) No.9 of 2021]
Coram: Justices K.Vinod Chandran & Ziyad Rahman A.A.
Counsel: Adv Renjith B. Marar, Govt. Pleader K.A.Anas

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