Preventive detention can't be misused for law & order issue: Supreme Court

NEW DELHI: Terming preventive detention a draconian provision, Supreme Court has held that govt’s inability to tackle the law and order situation should not be an excuse to invoke it and any capricious or routine exercise of it must be nipped in the bud.
A bench of Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra said preventive detention can be ordered only in case of public disorder and not for law and order problems.
Differentiating between these two, the court said that the distinction between them is one of degree and extent of the reach of the act in question on society.
“It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise the problem of law and order only,” the bench said.
The court further said that habituality of committing offence should not be the sole reason for invoking preventive detention.
“This court has time and again reiterated that in order to bring the activities of a person within the expression of ‘acting in any manner prejudicial to the maintenance of public order’, the activities must be of such a nature that the ordinary laws cannot deal with them or prevent subversive activities affecting society. Inability on the part of the state’s police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention,” it said, while coming down hard on Telangana govt for taking recourse to preventive detentions without the necessary justification.
The court pulled up Telangana govt for unnecessarily invoking preventive detention and warned the state not to do anything to force the court to observe further against it.
It said that the Advisory Board, set up under the Act and which is to approve preventive detention, should not act as a mere rubber-stamping authority and it must play an active role in ascertaining whether the detention is justified under the law or not. The court quashed two preventive detention orders passed by the state govt.
“...preventive detention being a draconian measure, any order of detention as a result of a capricious or routine exercise of powers must be nipped in the bud. It must be struck down at the first available threshold and as such, it should be the Advisory Board that must take into consideration all aspects, not just the subjective satisfaction of the detaining authorities, but whether such satisfaction justifies detention of the detenu. The Advisory Board must consider whether the detention is necessary not just in the eyes of the detaining authority, but also in the eyes of law,” it said.
The entire purpose behind creation of an Advisory Board is to ensure that no person is mechanically or illegally sent to preventive detention. In such circumstances, the Advisory Boards are expected to play a proactive role. The Advisory Board is a constitutional safeguard and a statutory authority. It functions as a safety valve between the detaining authority and the State on one hand and the rights of the detenu on the other. The Advisory Board should not just mechanically proceed to approve detention orders, but is required to keep in mind the mandate contained in Article 22(4) of the Constitution of India.