Writ Jurisdiction U/A 226 May Be Exercised At Pre-Detention Stage In Case Of Potential Threat To A Person's Fundamental Rights: Madras High Court

A Single Bench of Justice N. Anand Venkatesh has held,

"The power exercised under Article 226 and Article 32 of the Constitution while reviewing an executive decision can never be subjected to any restrictions and such powers are untrammeled to protect the rights of the citizens.
Article 226 of the Constitution empowers the High Court to exercise its Writ Jurisdiction even at a pre-detention stage where this Court finds that there is a threat of a potential violation of the fundamental right under Article 21 of the Constitution."

The finding comes with a rider that before exercising such jurisdiction, the Court concerned must satisfy itself that there is a potential threat of violation of Article 21 of the Constitution.

For this, the Bench said, here must be some materials before the Court to determine the existence of a potential threat. "It cannot be based on mere apprehensions and this Court can only act on some overt acts," it held.

Background

The remarks were made while deciding a writ petition filed by one D. Aswin Rao, apprehending detention under the Goonda Act, 1982.

It was the Petitioner's case that his co-accused had already been detained under the Goonda Act and there was every likelihood that he'll met the same fate. He submitted that he is not a habitual offender and urged the Court to issue a writ of mandamus, restraining the Police authorities from taking any coercive action against him.

The Government Advocate on the other hand submitted that a Writ Petition can never be entertained merely based on apprehensions. It was submitted that a writ of mandamus cannot be issued forbearing a statutory authority from performing his function. It was further contended that the Petitioner cannot anticipate that an illegal detention order will be passed against him and such anticipation cannot give raise to a cause of action to file the present Writ Petition.

Thus, the question before the Court was whether a writ of mandamus can be issued merely based on the apprehension raised by the Petitioner that he will be detained under Goonda Act, 1982.

Findings

The Single Judge referred to a plethora of decisions rendered by the Supreme Court on this subject. In SMD Kiran Pasha v. Government of Andhra Pradesh & Ors., 1990 (1) SCC 32, the Supreme Court had held,

"Resort to Article 226 after the right to personal liberty is already violated is different from the pre-violation protection. Post-violation resort to Article 226 is for remedy against violation and for restoration of the right, while pre-violation protection is by compelling observance of the obligation or compulsion under law not to infringe the right by all those who are so obligated or compelled.

If a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced."

The Court also made it clear in this case that the Court cannot take action for internal thoughts. It held that protection can be granted only after overt acts.

It opined that if overt acts towards violation have already been done and the same has come to the knowledge of the person threatened with that violation and he approaches the court under Article 226 giving sufficient particulars of proximate actions as would imminently lead to violation of right, the court may call upon those alleged to have taken those steps to appear and show cause why they should not be restrained from violating that right.

Similarly, in Addl. Secy. To Govt. of India v. Alka Subhash Gadia, 1992 SCC Supp 496, the Top Court broadly identified following contingencies for interfere at a pre-execution stage:

• that the impugned order is not passed under the Act under which it is purported to have been passed;
• that it is sought to be executed against a wrong person
• that it is passed for a wrong purpose
• that it is passed on vague, extraneous and irrelevant grounds;
• that the authority which passed it had no authority to do so.

[Note: In Subash Popatlall Dave v. Union of India & Anr., (2012) 7 SCC 533, the Supreme Court made it clear that the above five grounds are merely illustrative and not exhaustive.]

In this backdrop, the High Court held that a writ petition is maintainable at a pre-detention stage, subject to apprehensions on the basis of some overt act(s).

In the instant case, the Bench noted, the only apprehension in the mind of the Petitioner is that since his co-accused has been detained under the Goonda Act 1982, there are all chances of him also getting roped in and detained under the said Act.

The Court found that this ground is too farfetched for it to exercise its jurisdiction under Article 226 of the Constitution. It noted that there is absolutely no overt act that is available for the Court to even prima facie satisfy itself that there is a potential threat of violation of Article 21 of the Constitution against the Petitioner.

Thus, the petition was rejected with the following concluding remarks,

"This Court must keep in mind that a writ of mandamus should not be issued where it indirectly restrains an authority from performing or exercising their statutory function. This Court must perform a balancing act in cases of this nature and interfering at a pre-detention stage must be far and few depending upon the exigencies in a given case. In other words, only in exceptional cases, this Court can exercise such a power."

Case Title: D. Aswin Rao v. State & Ors.

Click Here To Download Order

Read Order