10 Factors To Be Considered By Courts To Decide Legality Of Preventive Detention : Supreme Court Explains

The Supreme Court on Monday while strongly condemning 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, laid down guidelines to be followed by courts while considering the legality of orders of preventive detention. 

A division bench of Justice Surya Kant and Justice Dipankar Datta referred to a catena of judgements on the requisites of a valid detention order and the scope of judicial reviewability of the same and culled out the following guidelines for constitutional courts to abide by. The Court must interfere if the order is found to be bad in law on application of the tests laid down below, the Court held. The legality of the order is to be tested based on whether:

(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.

“Should the Court find the exercise of power to be bad and/or to be vitiated applying any of the tests noted above, rendering the detention order vulnerable, detention which undoubtedly visits the person detained with drastic consequences would call for being interdicted for righting the wrong.” the Court said. 

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

The Apex Court also reminded the authorities of the state of Telangana that the drastic provisions of the Preventive Detention Act should not be invoked at the 'drop of a hat': 

“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 Apex Court categorically said.