Preventive Detention Laws Are Exceptional Measures, Not To Be Invoked When Ordinary Criminal Law Provides Remedies : Supreme Court

The Supreme Court has stated that that preventive detention laws are an 'exceptional measure reserved for tackling emergent situations' and must not be used as a tool for enforcing 'law and order'.  The Court strongly condemned the growing trend in the state of Telangana of passing orders of preventive detention at the ‘drop of a hat’ without consideration of the liberty and freedom guaranteed to people under the Constitution of India.

In this context, a division bench of Justice Surya Kant and Justice Dipankar Datta distinguished between “law and order” and maintenance of “public order”. The Apex Court clarified that for an act to qualify as a disturbance to ‘public order’, for the provisions of the Preventive Detention Act to apply, the activity must impact the general public and evoke feelings of fear, panic, or insecurity. “Stray acts affecting private individuals and the repetition of similar such acts would not tend to affect the even flow of public life",the Court observed.

“We are also constrained to observe that preventive detention laws—an exceptional measure reserved for tackling emergent situations—ought not to have been invoked in this case as a tool for enforcement of “law and order”.  the Apex Court held. 

The Apex Court was considering an appeal against an order of the Telangana High Court that had refused to interfere with the detention order against the husband of the appellant in a writ of habeas corpus filed by her.

The challenge was against the detention order passed under Section 3(2) of the 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 1986.

The impugned detention order in this case had been passed under Section 3(1) of the Act, to prevent the detenu from acting in a manner prejudicial to the maintenance of 'public order'. The Apex Court observed that 'public order' is defined in the explanation to Section 2(a) of the Act as situations that cause “harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health.”

The Court in the said case found that the impugned detention order failed to appreciate the difference between maintenance of “law and order” and maintenance of “public order”. The Court found that the acts of the detenu did not qualify as those affecting maintenance of public order as required under the Act.

The Court also found that there were no circumstances to invoke extraordinary provisions of the Preventive Detention Act, when ordinary criminal law provided sufficient means to deal with detenu.

The Court noted that in the three criminal proceedings where the Detenu had been released on bail, the state did not move for cancellation of bail. The Court observed that when ordinary provisions of criminal law would have sufficed to deal with the detenu, there was no reason for the state to invoke the provisions of the preventive detention act, being an extraordinary statute.

“In the light of the same, the provisions of the Act, which is an extraordinary statute, should not have been resorted to when ordinary criminal law provided sufficient means to address the apprehensions leading to the impugned Detention Order. There may have existed sufficient grounds to appeal against the bail orders, but the circumstances did not warrant the circumvention of ordinary criminal procedure to resort to an extraordinary measure of the law of preventive detention.” the Apex Court said.

The Apex Court thus quashed the impugned detention order and the judgment of the High Court and allowed the appeal.

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