Preventive Detention A Harsh Measure, Permissible Only When 'Public Order' Disturbed : Supreme Court

While quashing a preventive detention order, the Supreme Court observed that preventive detention is a harsh measure, which cannot be invoked against every alleged breach of peace. Rather, the power can be invoked only when the act of the proposed detainee had a tendency of disturbing "public order".

"The distinction between public order and law and order has been succinctly discussed by Hidayatullah J (as his Lordship then was) in the case of Ram Manohar Lohia v. State of Bihar...Constitution Bench of this Court has held that every breach of peace does not lead to public disorder. It has been held that when a person can be dealt with in exercise of powers to maintain law and order, unless the acts of the proposed detainee are the one which have a tendency of disturbing the public order, resort to preventive detention, which is a harsh measure, would not be permissible", said a Bench of Justices BR Gavai and KV Viswanathan.

Statedly, the petitioner (proposed detainee) was engaged in the production of handcrafted liquors for last few years. Due to the same, the government functionaries and people in the nearby vicinity faced some issues, to the extent that certain residents left their houses and none dared to make a complaint.

In this backdrop, the Court noted that 6 cases were registered against the petitioner qua illicit liquor business activities, but the excise authorities did not find it necessary to arrest him even once. Further, reliance was being placed by the authorities on two witness statements (to substantiate allegations of threats by the petitioner), but the same were vague, stereotypical and identical (in toto).

"Statements, which are stereotyped, even if taken at face value, would show that the threat given to the said witnesses by the petitioner in the privacy of the petitioner and the said witness. The statements also do not show that the said witnesses were threatened by the petitioner in the presence of villagers, which would create a perception in the mind of the villagers that the petitioner is a threat to public order", the Court said.

Further, it underscored the distinction between a "law and order" situation and a "public disorder" case thus:

"The powers of maintaining law and order would depend upon the facts and circumstances of each case. For example, if somebody commits a brutal murder within the four corners of a house, it will not amount to a threat to public order. As against this, if a person in a public space wherein number of people are present creates a ruckus by his behavior and continues with such activities, in a manner to create a terror in the minds of the public at large, would amount to a threat to public order. So, in a given case there may not be even a physical attack."

Passing the order, the Court also referred to the judgment in Ameena Begum v. State of Telangana, where it was observed 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'. In this case, the Court had strongly condemned the growing trend in 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.

Ultimately, not finding the detaining authority's subjective satisfaction (as to the petitioner's activities being prejudicial to public order) to be substantiated, the Court quashed the preventive detention order. The petitioner was directed to be released forthwith, if not required in any other case.

Case Title: ARJUN S/O RATAN GAIKWAD Versus THE STATE OF MAHARASHTRA AND ORS., SLP(Crl) No. 12516/2024

Citation : 2024 LiveLaw (SC) 982

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